We have long endorsed the use of Lone Pine orders as a partial antidote to wasteful mass litigation. The issue is the numbers, large numbers of meritless claims that are parked in a mass proceeding, such as an MDL, where they both strain judicial resources and detract from litigation of claims that have arguable merit. They also apply undue pressure on defendants to settle, which of course is why plaintiffs’ attorneys file the cases in the first place.
So-called Lone Pine orders come in various shapes and sizes, but they essentially require plaintiffs to produce threshold prima facie support for their claims, such as proof of a relevant injury and expert reports. If you want to come to the dance, you have to show you belong. Our only consistent criticism of Lone Pine orders is that courts should enact them much sooner than they typically do. Why wait?
The district court in Hamer v. Livanova Deutschland GMBH, No. 20-1656, 2021 WL 1324028 (3d Cir. Apr. 9, 2021), had the right idea, and it executed well, but the Third Circuit let the plaintiff off the hook. In Hamer, the district judge presiding over an MDL involving surgical heater-cooler systems (which we last blogged about here) entered a Lone Pine order requiring that each plaintiff produce (1) a positive culture for the particulate type of infection at the center of the MDL and (2) expert reports showing general and specific causation. Id. at *1. The timing is key. The district court entered the Lone Pine order after the defendant implemented a mass settlement, leaving only non-settling plaintiffs to comply. Id. The apparent intent, at that stage, was to give plaintiffs further incentive to join the settlement, rather than to cull meritless claims (which would require a much earlier order). But nonetheless Lone Pine orders have that effect, whenever entered. And so it was here.
The plaintiff had plenty of time, yet he still failed to comply. Id. at *2. The district court therefore entered an order to show cause, then dismissed the case with prejudice, after the plaintiff acknowledged that he had no proof of the particular kind of infection at issue. Id. at *2. The Third Circuit reversed in an opinion that endorses and even commends Lone Pine orders, but held in the end that the sanction (involuntary dismissal) did not fit the crime, since while the plaintiff’s action did not belong in the MDL, it might not be meritless.
According to the Third Circuit, Lone Pine orders serve an important purpose:
[A]n MDL court “needs to have broad discretion to . . . keep[ ] the parts in line” by entering Lone Pine orders that “drive[ ] disposition on the merits.” Such orders may impose preliminary discovery requirements, like the production of relevant expert reports, or may require plaintiffs to furnish specific evidence like proof of a medical diagnosis, with the goal of winnowing non-compliant cases from the MDL.
Id. at *3 (quoting In re Asbestos Prods. Liab. Litit. (No. VI), 718 F. 3d 236 (3d Cir. 2013)). The district court was right on the money in entering its order, and the Third Circuit did not find or even suggest otherwise. Instead, the Third Circuit gave the plaintiff a second chance because, even if he could not prove the “signature” infection, maybe he had a different infection, or maybe his infection had passed before a culture could be taken. Id. at *3-*4. The Third Circuit’s solution was not to dismiss the case, but to remand the case from the MDL to the transferor district for separate case-specific proceedings. Id. at *4-*5.
This opinion is at the intersection of two prevalent trends. On the one hand, we see mass inventories of cases with large numbers of plaintiffs whose claims are questionable and will never be genuinely questioned. That is the issue that Lone Pine orders are tailored to address. On the other hand, once a mass settlement has been reached—motivated in many cases by the desire to resolve large inventories—the non-settling plaintiffs are often not ready to go because they never thought they would have to prove anything. That is what happened here. The plaintiff in Hamer passed on settlement, then struggled when he had actually to prove that he had a bona fide claim. He found a narrow loophole, but query how long his claim will last if he cannot prove the diagnosis needed for the injury that drove his claim in the first place.
So Lone Pine orders are alive and well, and the narrow result here should not deter courts from entering them. We can only hope that courts start entering them sooner, which would both “winnow non-compliant” cases and also deter others from filing claims when they have no proof.