In our legal world, Lone Pine is not a small California town near the majestic Mt. Whitney and the sobering Manzanar National Historic Site.  It is an order directing plaintiffs to come forward with some evidence that they took, or were exposed to, the product they are suing over, and some evidence about their alleged injury (that it exists, and maybe even that it was connected to the product).

To those who don’t live in our legal world:  Yes, lawsuits are filed all the time on behalf of people who never took the drug, had the device, used the product, were exposed to the chemical.  And yes, lawsuits are filed all the time on behalf of people who have no injury from that drug, device, product, or chemical.  And no, it is not so easy to get rid of such cases—it can take years of expensive discovery and motion practice for the truth to out, particularly if the bad lawsuit apples are hiding out amongst several hundred bushels in an MDL or mass tort.  

We now have a PFAS case, Conklin v. Corteva, 2025 U.S. Dist. LEXIS 92028, 2025 WL 1402696 (E.D.N.C. May 14, 2025), to add to our Lone Pine Cheat Sheet, which these days is getting slightly more populated.

In Conklin, after the Eastern District of North Carolina partially denied a motion to dismiss and allowed some claims to proceed toward discovery, the defendants requested a Lone Pine order.  The defendants asked for entry of a case management order directing the plaintiffs (60 in all, across 8 related cases) to come forward with expert declarations confirming they each had the injuries they allege, and that those injuries were proximately caused by their exposure to PFAS. 

The court thought that requiring a “‘measure of evidence’” near the outset of the cases might help it “‘identify and cull potentially meritless claims and streamline litigation.’”  Id. at *3 (quoting In re Digitek Prod. Liab. Litig., 264 F.R.D. 249, 255 (S.D.W. Va. 2010) and In re Vioxx Prod. Liab. Litig., 557 F. Supp. 2d 741, 743 (E.D. La. 2008)).  So, it went through the Lone Pine factorial test.

Factor 1:  What is the posture of the litigation? 

A pre-discovery Lone Pine order can be appropriate where “the requested information is the kind that plaintiffs should have had in their possession before filing the lawsuit pursuant to Fed. R. Civ. P. 11.”  This was true in Conklin.  Plaintiffs had full access to their own medical records and would eventually need to produce supporting expert testimony anyway.  In fact, by the time the Lone Pine order was requested, their lawsuits already had been on file for two years, so this wasn’t even a particularly early Lone Pine request.  This procedural posture favored a Lone Pine order, and would not impose undue burdens. 

Factor 2:  What are the peculiar case management needs of the litigation?

Although the plaintiffs argued that the litigation involved too few cases to warrant a Lone Pine order, the court—juggling 60 plaintiffs across 8 lawsuits—disagreed.  A Lone Pine order would help with case management.

Factor 3:  Have questions been raised about the plaintiffs’ medical and scientific evidence?

The parties traded arguments about EPA findings regarding what levels of exposure to PFAS could cause harmful effects as well as university research about the defendant’s PFAS use.  Safe to say, questions had been raised, and the fact that there was debate was the point.  Although plaintiffs could not be faulted for filing suit without waiting for full scientific clarity, they had to “accept that ongoing research concerning PFAS compounds [would] affect the viability of their claims.”

Factor 4:  Would other procedures accomplish the same goals?

Federal procedure, of course, allows for the usual forms of discovery (depositions, interrogatories, independent medical exams, requests for documents), and motions for summary judgment are another procedure that requires a plaintiff to come forward with some evidence in support of his or her claim.  But unlike a Lone Pine order, these usual discovery tools and usual forms of motion practice are just not very efficient and take too long, and they thus would be “insufficient to address the issues at hand.”

Factor 5:  What are the injuries alleged, and their alleged cause?

Lone Pine orders are well suited for environmental contamination matters, and plaintiffs’ PFAS allegations fit that paradigm.  (Although we would hasten to add, Lone Pine orders are well suited to pharmaceutical and medical device product liability litigation as well.)

All the factors in Conklin thus favored a Lone Pine order “requiring plaintiffs to submit expert declarations confirming their injuries and proximate causation.”  This was basic evidence they were supposed to have before filing a lawsuit, and eventually would need to produce anyway to prevail at trial. 

In short, another good Lone Pine decision.  Maybe someday we will have a whole pine forest.