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 WL 637507 (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 WL 637507 (N.J. Super. Nov. 18, 1986).
- In re Love Canal Actions, 547 N.Y.S.2d 174, 176-78 (N.Y. Sup. 1989) (enforcing order requiring production of evidence of exposure, injury, and causation), aff’d as modified, 555 N.Y.S.2d 519 (N.Y.A.D. 1990) (affirmed except for ordering production of formal expert reports).
- Eggar v. Burlington Northern Railroad Co., 1991 WL 315487, at *4 (D. Mont. Dec. 18, 1991) (granting summary judgment under prior case management order requiring plaintiffs to produce an medical expert’s affidavit “specify[ing], for each test plaintiff, the precise injuries, illnesses or conditions suffered by that plaintiff; the particular chemical or chemicals that, in the opinion of the physician, caused each injury, illness or condition; and the scientific and medical bases for the physician’s opinions. It will not be sufficient for the affidavit to state a ‘laundry list’ of injuries and chemicals; each injury, illness or condition must be itemized and specifically linked to the chemical or chemicals believed to have caused that particular injury, condition or illness. Moreover, the statement of scientific and medical bases for the opinion shall include specific reference to the particular scientific and/or literature forming the basis for the opinion”), aff’d, 29 F.3d 499 (9th Cir. 1994)
- Cottle v. Superior Court, 5 Cal. Rptr.2d 882, 886-92 (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, 1036-38 (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).
- Able Supply Co. v. Moye, 898 S.W.2d 766, 771 (Tex. May 11, 1995) (granting mandamus compelling plaintiff to answer interrogatory demanding Lone Pine-type discovery: “Please state the name and address of each and every doctor, physician or other medical practitioner who has attributed your alleged injury made the basis of this lawsuit to exposure to the defendants’ products, including the dates of treatment or examination of each such doctor, physician or other medical practitioner, and the name or identity of the product to which your alleged injury is attributed.”
- Schelske v. Creative Nail Design, Inc., 933 P.2d 799, 802-05 (Mont. Jan. 2, 1997) (affirming district court’s dismissal of plaintiffs who failed to comply with trial court order requiring product identification; use and exposure; and causation linking product defect to an identifiable injury).
- In re Orthopedic Bone Screw Products Liability Litigation, 1997 WL 303239, at *1-3 (E.D. Pa. Feb. 3, 1997) (entering order, invoking Rule 11, requiring “each plaintiff [to] identify and provide expert discovery with respect to at least one duly-qualified, medical expert on the issues of injury and causation.” Setting various deadlines and subsidiary discovery requirements related to same).
- Acuna v. Brown & Root, Inc., 1998 WL 35283824, at *5-6 (W.D. Tex. Sept. 30, 1998) (dismissing plfs who failed to comply with Lone Pine order requiring an expert report listing all injuries, illnesses or conditions suffered by the plaintiff that were caused by exposure to materials or substances from defendant’s operations, specifying what substances caused each injury, identifying the particular activity that was the source of the materials or substances, describing the exposures with specific dates, times, circumstances, incidents and dosages; and stating the scientific and medical bases for the expert’s opinions), aff’d, 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 Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App. Oct. 6, 1998) (granting mandamus compelling trial court to “set a timetable for discovery of facts showing a causal relationship between the defendants’ products and any harm to the plaintiffs”).
- Adjemian v. American Smelting & Refining Co., 2002 WL 358829, at *1-6 (Tex. App. March 7, 2002) (affirming district court’s dismissal of plaintiffs who failed to comply with trial court order requiring production of information about the specific toxic substances to which they were exposed, the particular injuries that resulted from the exposure, and the medical evidence that supported each claimant’s case).
- 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 to “identify . . . 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”).
- Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264, 268 (Tex. Oct. 1, 2004) (affirming dismissal for violation of Lone Pine order requiring plaintiffs to specify (among other things) their dates of residence, specific complaints, and substances they contend were emitted from the defendants’ plants).
- In re 1994 Exxon Chemical Plant Fire, 2005 WL 6252312, at *1-2 (M.D. La. April 7, 2005) (entering Lone Pine order requiring plaintiffs to produce evidence linking their alleged exposures to a particular substance with an identified injury. 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.”). See Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 604 n.2 (5th Cir. 2006) (describing order).
- 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).
- Bell v. Exxonmobil Corp., 2005 WL 497295, at *1, 3 (Tex. App. March 3, 2005) (affirming dismissal for failure to comply with Lone Pine order requiring each plaintiff to file an expert report detailing the manner and duration of the exposure the plaintiff had experienced, the chemicals to which the plaintiff was exposed, and, to a reasonable medical probability, the injury sustained because of that exposure. It also required expert affidavits detailing the location of the property damage claimed in the plaintiffs’ petition, the amount of economic injury, and the causative link between the chemical exposure and the damage.).
- 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). See 441 F. Supp.2d 567, 570 (dismissing plaintiffs whose reports were inadequate)
- In re Silica Prods. Liability Litig., 398 F. Supp.2d 563, 576 (S.D. Tex. June 30, 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).
- Baker v. Chevron USA, Inc., 2007 WL 315346, at *1 (S.D. Ohio Jan. 30, 2007) (dismissing plaintiffs who failed to comply with Lone Pine case management order requiring them to produce “an affidavit from a qualified expert or experts setting forth for each Plaintiff the specific illness allegedly sustained, the date the illness was diagnosed, the name and address of the medical provider who made the diagnosis, the toxic chemical which allegedly caused the illness, the alleged manner of exposure, and the date, duration, and dose of the exposure”).
- Burns v. Universal Crop Protection Alliance, 2007 WL 2811533, at *2-3 (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”).
- In re Vioxx Prods. Liab. Litig., 2007 WL 9653192 (E.D. La. Nov. 9, 2007) (Lone Pine order entered; plaintiffs must produce eight categories of documents, including exposure documentation and an expert report confirming injury and causation). Enforced, see below.
- 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, 353-54 (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”).
- Arias v. Dyncorp, 2008 WL 9887418, at *1-2 slip op. (D.D.C. Oct. 21, 2008) (entering Lone Pine order in toxic tort case involving herbicide exposure, requiring detailed exposure information, including map with location of each exposure event and submission of medical records as prerequisite to discovery). Dismissal of noncompliant plaintiffs affirmed, 752 F.3d 1011, 1015-16 (D.C. Cir. 2014).
- Wilcox v. Homestake Mining Co., 2008 WL 4697013, at *1 (D.N.M. Oct. 23, 2008) (dismissing plaintiffs for noncompliance with Lone Pine order requiring “expert affidavits which make a prima facie showing of harmful exposure and specific causation for each injury the particular Plaintiff claims was caused by the Defendants’ alleged contamination”), aff’d on other grounds, 619 F.3d 1165 (10th Cir. 2010) (Lone Pine noncompliance dismissals not appealed).
- McManaway v. KBR, Inc., 265 F.R.D. 384, 385 (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 Asbestos Products Liability Litigation (No. VI), MDL No. 875, Admin. Order #12, slip op., at sec. 5 (E.D. Pa. Sept. 3, 2009) (current version of Asbestos MDL Lone Pine order, requires disclosure of expert reports supporting causation for both malignant and non-malignant cases, “objective and subjective” data on which reports are based must be “identified and descriptively set out within the report or opinion”). Dismissals based on AO #12 affirmed, see below).
- In re Avandia Mktg., Sales Practices and Prods. Liab. Litig., 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.”). A second Lone Pine order was issued in Avandia on April 16, 2015 (PTO 236) requiring an expert report. Dismissals based on Lone Pine orders affirmed see below).
- Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833-34 (9th Cir. Jan. 27, 2011) (upholding entry of Lone Pine order “requir[ing] written statements setting forth “all facts” supporting non-resident and post–1988 resident plaintiffs’ claimed exposure, together with a written statement from an expert describing the condition for which recovery was sought, identifying the chemical to which the plaintiff was exposed, explaining the route of exposure, opining on causation, and setting forth the scientific and medical basis upon which the opinion was based as to exposure and causation,” and affirming dismissal of plaintiffs whose proffered expert report failed to satisfy Daubert).
- Asarco LLC v. NL Industries, Inc., 2013 WL 943614, at *3 (E.D. Mo. March 11, 2013) (entering Lone Pine requiring plaintiff to provide evidence of: (a) the identity of each hazardous substance, (b) general causation – whether any and each of these substances can cause the type(s) of environmental injuries that allegedly occurred, (c) the dose or other quantitative measurement of the concentration, timing, and duration of exposure, (d) the precise location of each exposure, (e) an identification, by way of reference to scientifically based studies, of the specific environmental harms that have allegedly occurred, (f) quantification of contamination to property attributable to each defendant’s operations, and (g) a conclusion that such harm was in fact caused by exposure from each separate defendant’s operations; order entered as alternative to total stay of litigation).
- McMunn v. Babcox & Wilcox Babcock & Wilcox Power Generation Group, Inc., C.A. No. 2:1O-cv-OO1 43-DSC-RCM, slip op., (W.D. Pa. Jan. 25, 2012) (entering Lone Pine order requiring plaintiffs to identify within 90 days what they were exposed to, the source, the dose, the route of exposure, together with epidemiology and other scientific and medical evidence supportive of causation; forbidding terms such as “not limited to” or “without limitation”). Order enforced: McMunn v. Babcock & Wilcox Power Generation Group, Inc., 896 F. Supp.2d 347, 351-52 (W.D. Pa. 2012).
- Baker v. Anschutz Exploration Corp., No. 11-Civ.-6119-CJS, slip op. (W.D.N.Y. Sept. 25, 2012) (entering Lone Pine order requiring plaintiffs to produce expert reports quantifying property contamination and alleged contaminants). Order deemed complied with at Baker v. Anschutz Exploration Corp., 2013 WL 3282880, at *5 (W.D.N.Y. June 27, 2013).
- In re Fosamax Products Liability Litigation, 2012 WL 5877418 (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.”).
- Asarco LLC v. NL Industries, Inc., 2013 WL 943614 (E.D. Mo. March 11, 2013) (court entered Lone Pine order requiring plaintiffs to “establish (a) the identity of each hazardous substance from each Defendant’s activities that resulted in exposure and which [plaintiff] claims has caused environmental injury, (b) whether any and each of these substances can cause the type(s) of environmental injuries [plaintiff] claims occurred and for which it seeks contribution (general causation), (c) the dose or other quantitative measurement of the concentration, timing, and duration of exposure, (d) the precise location of each exposure, (e) an identification, by way of reference to scientifically based studies, of the specific environmental harms that have allegedly occurred, (f) quantification of contamination to property attributable to each Defendant’s operations, and (g) a conclusion that such harm was in fact caused by exposure from each separate Defendant’s operations”).
- In re Asbestos Products Liability Litigation (No. VI), 718 F.3d 236 (3d Cir. May 31, 2013) (Lone Pine order (AO 12) affirmed. MDL court properly required all asbestos plaintiffs to “submit to the court a copy of the medical diagnosing report or opinion upon which the plaintiff now relies,” and “requir[e] a complete exposure history.” Noncompliant plaintiffs were properly dismissed).
- Miller v. Metrohealth Medical Center, 2014 WL 12589121 (N.D. Ohio March 31, 2014) (entering Lone Pine order requiring plaintiffs to “to provide an affidavit or signed report from a qualified expert as to what, if anything, was defective about [defendant’s] product and the causal connection” to the alleged injuries.
- In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2014 WL 12692773, slip op. at 2, 5 (S.D. Ill. May 29, 2014) (Lone Pine order entered requiring non-settling plaintiffs to produce exposure documents and an expert report establishing exposure, injury, causation, and basis for causation opinion).
- In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179, slip op. (E.D. La. July 17, 2014) (Lone Pine order entered against non-settling plaintiffs to produce: (1) if clean-up workers, certain employment-related information; (2) a specific explanation of the circumstances of alleged exposure, including the pathway of exposure, the date(s), time(s), and location(s) of exposure, the duration of exposure, and which defendant is alleged to be responsible; (3) a specific description of the alleged injury, illness, or medical condition sustained; (4) the basis for the identification each defendant allegedly responsible for such exposure, including dates, times, locations, and acts/omissions; and (5) details and evidence regarding violations of federal government instruction, if any). Enforced, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 2016 WL 614690 (E.D. La. Feb. 16, 2016).
- Abner v. Hercules, Inc., 2014 WL 5817542 (S.D. Miss. Nov. 10, 2014) (entering Lone Pine order requiring plaintiffs to demonstrate a prima facie case that their property has been contaminated by the defendants’ conduct).
- Modern Holdings, LLC v. Corning Inc., 2015 WL 64823744 (E.D. Ky. Oct. 27, 2015) (Lone Pine order entered requiring each plaintiff in environmental pollution case to submit an affidavit explaining (a) the specific illness sustained; (b) the date of diagnosis and information about the medical provider making the diagnosis; (c) the toxic chemical that allegedly caused the illness, with information about the manner, pathway, dates, duration, and dose of exposure; and (d) the scientific literature supporting a link between the plaintiff’s illness and the described chemical exposure).
- In re Zimmer Nexgen Knee Implant Products Liability Litigation, 2016 WL 3281032, slip op. (N.D. Ill. June 10, 2016) (Lone Pine order requiring each plaintiff in bellwether trial track in medical device MDL to identify particular injury claims and provide a signed expert declaration regarding causation in the form attached to the order).
- Trujillo v. Ametek, Inc., 2016 WL 3552029 (S.D. Cal. June 28, 2016) (Lone Pine order entered requiring case-specific expert reports that must include identity of substance exposed to, dose, route of exposure, relative risk, clinical value of early detection (this is a medical monitoring case), and scientific/medical bases for the above).
- Gbarabe v. Chevron Corp., 2017 WL 956628 (N.D. Cal. March 13, 2017) (“causation evidence as to the named Plaintiffs comparable to Lone Pine” required to accompany class certification request).
- In re Avandia Marketing, Sales Practices & Products Liability Litigation, 687 F. Appx. 210 (3d Cir. April 19, 2017) (Lone Pine orders are “routine” and within the “wide latitude” afforded MDL courts in managing litigation. Affirming dismissals with prejudice).
- In re Testosterone Replacement Therapy Products Liability Litigation, 2018 WL 62588983 (N.D. Ill. June 11, 2018) (Lone Pine order requiring each remaining and new plaintiff against certain settling defendants to produce all medical and pharmacy records, and an expert report within 90 days. Lone Pine orders are particularly appropriate after settlement).
- In re Xarelto (Rivaroxaban) Products Liability Litigation, 2021 WL 493069 (E.D. La. Feb. 10, 2021) (Lone Pine orders are routine in mass tort litigation. Plaintiff dismissed for failing to provide a case-specific and product-specific causation opinion from a qualified expert).
- Hamer v. Livanova Deutschland GMBH, 994 F.3d 173 (3d Cir. April 9, 2021) (Lone Pine orders requiring preliminary discovery are proper in MDL cases, with the goal of winnowing meritless cases. Sanction of dismissal for failure to comply reversed because plaintiff’s case did not belong in the MDL in the first place, which was why the necessary medical proof could not be obtained. Case should have been remanded rather than dismissed).
- In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2022 WL 952179 (E.D. Pa. March 30, 2022) (All plaintiffs claiming to have a product-related viral infection are ordered to get a simple genetic test to establish that they did not have a wild version of the same virus as an alternative cause. The test will weed out meritless cases).