One of the problems with so-called Lone Pine orders in MDLs is timing – they are usually entered way too late, more as vehicles to enforce settlements than as any genuine effort to weed out the large number of bogus cases that everyone, including plaintiffs, admits are present in MDLs.

We can’t say that the Lone Pine order recently entered in the Zostavax MDL, In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2022 WL 952179 (E.D. Pa. March 30, 2022), was timely entered, but at least it’s primary purpose was to weed out worthless claims instead of herding plaintiffs into a global settlement (forced at least partially by large numbers of bogus claims).

The Zostavax decision explains what happened to warrant a Lone Pine order.  The product under assault in that litigation is a vaccine to prevent shingles – a disease caused by the same virus that also causes chicken pox.  Almost everyone gets chicken pox as a child, but the adult disease shingles is a lot more dangerous.  As the name of the MDL indicates, the active ingredient in this vaccine is an enervated live virus.  “It includes the Oka strain of the VZV, a live-attenuated virus that is a weakened form of the natural or wild-type virus found in the body of someone who has had chicken pox.”  2022 WL 952179, at *2.

As we’ve discussed before, federal preemption under the Vaccine Act has done an excellent job of protecting the nation’s vaccine supply from being overwhelmed by litigation.  Zostavax is an exception, since the Vaccine Act only covers childhood vaccines, while this product is exclusively for adults.  Plaintiffs’ theory is that, instead of preventing shingles, the vaccine can cause it instead, due to the use of the live virus.  Id.  In the Zostavax MDL the plaintiffs did what they always do and solicited many hundreds of claimants (some 1700) without regard to whether any of them actually had a case.  And, as we explained here, that came back to bite them because of a serious causation problem – having had chicken pox as a kid is “an obvious alternative cause,” because the virus can linger for a lifetime and cause shingles many years later:

Because shingles occurs from reactivation of the virus that causes chicken pox and almost everyone over 30 in the U.S. has had chicken pox, approximately 1/3 of adults develop shingles during their lifetimes.  The reactivation apparently happens randomly or can be brought on by a variety of stressors.  Thus, the court’s statement that “There is no doubt that defendants have presented an obvious alternative cause of the plaintiffs’ shingles, that is, the activation of the natural wild-type virus latent in their bodies.”

Blogpost (quoting and citing In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2021 WL 5631687 (E.D. Pa. Dec. 1, 2021)).  As we discussed in that prior post, all of the Zostavax bellwether plaintiffs’ experts simply ignored this obvious alternative in formulating patently invalid “differential diagnoses” and were therefore excluded under F.R. Evid. 702.

Moreover, as we discussed in that prior post, the wild chickenpox virus that we encounter in childhood has a different genetic makeup from the “Oka strain” that was used to create the vaccine that the Zostavax plaintiffs are suing over.  A “simple” genetic test existed that could tell them apart, and thus eliminate or establish the alternative cause.  Not surprisingly, not one of the five bellwether plaintiffs was willing to take the test and thereby establish whether or not there was a real case:

“A simple PCR test?” one might ask.  “Then why, pray tell, don’t we just look at the test results for each plaintiff?”  Well, these five did not have them. Why not?  We do not know.

Blogpost (similarly quoting 2021 WL 5631687).  And so all five Zostavax bellwether plaintiffs had their experts excluded and summary judgment entered against them.

Well, what about the 1700 or so remaining Zostavax plaintiffs?

That’s what the Zostavax Lone Pine order is about.  The defendant sought an order requiring all of these remaining plaintiffs to get themselves tested.

[Defendant] now seeks to require the remaining Group A plaintiffs to produce specific testing evidence that the Zostavax virus as opposed to the virus from latent chicken pox caused their shingles-related injuries.  What [defendant] requests is known as a Lone Pine order. . . .

Zostavax, 2022 WL 952179, at *2 (description of Lone Pine order concept omitted).  Helpfully, the controlling court of appeals had “approved” use of Lone Pine orders in MDLs less than a year before.  Id. (discussing Hamer v. LivaNova Deutschland GmbH, 994 F.3d 173 (3d Cir. 2021)) (see our discussion of the same decision, here).

Thus, an MDL-wide Lone Pine order as an “essential tool” to help an MDL “court weed out non-meritorious claims” was just what the doctor (or, here, the Third Circuit) ordered.  Id. (Hamer-related quotation marks omitted).

[A] district court . . . may impose a Lone Pine order so as to require plaintiffs to furnish specific evidence like proof of a medical diagnosis, with the goal of winnowing non-compliant cases from the MDL.  This is exactly what [defendant] seeks here.

Id. (Hamer-related quotation marks omitted).

Zostavax then discussed the disproportion between the massive MDL discovery the defendant had been forced to provide over the last “three years,” versus the MDL plaintiffs’ obviously concerted failure to be “tested for the type of virus present.”  Id.  In light of that disparity, the Lone Pine order that the MDL defendants sought was “not unreasonable.”

There is compelling medical authority that a laboratory test of the shingles rash of a person who has had chicken pox is the only way to tell whether the shingles was caused by the virus strain contained in Zostavax or by the wild-virus strain from chicken pox latent in a person’s body. . . .  [Plaintiffs have] not cited any medical literature or expert medical opinion explaining how it can be determined that Zostavax caused a person to contract shingles other than, as defendants have shown, through a testing of that person’s rash.

Id. at *2-3 (citations omitted).  Thus the court ordered the 1700 remaining plaintiffs claiming vaccine-caused shingles “to come forward with the Laboratory Reports or other documentation [defendant] requests to enable the court to weed out non-meritorious from meritorious claims.”  Id. *3.

This Lone Pine order does seem to be precisely the right tool (if a little late) for the job of vetting the cases of the plaintiffs in this particular MDL.  But its importance goes beyond just purpose and timing – Zostavax is not the usual order to produce medical records and related documents.  Rather it orders plaintiffs to undergo a form of genetic testing to identify a particular type of viral DNA.

Given that genetic testing for all kinds of DNA sequences is becoming both cheaper and more accurate all the time, Zostavax is an important precedent that courts have the power to require litigants to undergo such tests.  Appropriate genetic testing has the potential to prove − and more importantly from our perspective, to disprove − many types of claimed injury.  That’s why we’ve collected precedent and written about cases involving pharmacogenomic discovery.  We’ve even proposed that the Federal Rules should be amended to address “provision of blood or tissue sampling for genetic testing.”

Given Moore’s Law and the pace of scientific progress, we would not be at all surprised in a few years for genetic testing orders to be routine practice in MDLs.  We can even envision the results of such mass-tort testing − properly redacted to ensure individual privacy − harnessed as part of the “big data” push to find genetic cures for what ails the human race.  That would be a socially beneficial use for MDL discovery.  Will wonders never cease?

**********

Note:  We are informed, by someone with more knowledge of the Zostavax litigation than we do, that the genetic testing required by the Lone Pine order must occur at the time the infection is active. Thus all of the 1700 plaintiffs either had the testing done at the time they suffered from shingles or they cannot now satisfy the terms of the Lone Pine order, which means that their cases will be dismissed for inability to establish causation.  Thus, while this order does not mandate new testing, it has even more teeth, in terms of culling meritless cases, than we previously thought.

 

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.

February is a fine time to cuddle up with a good book or a short case. Take a look at In re Xarelto Products Liability Litigation, 2021 WL 493069 (E.D. La. Feb. 10, 2021). Pro se plaintiffs brought a lawsuit claiming their relative died from a brain hemorrhage caused by Xarelto. Their case was sent to the Xarelto MDL, where it was something of a latecomer. By this time, a Master Settlement Agreement (MSA) was in place, and the opt-in rate was exceeding 99%.

The MDL court had entered Case Management Order (CMO) 11, which applied to any plaintiff who had not signed onto the MSA. CMO 11 imposed several requirements upon non-settling plaintiffs, including the filing of a case specific Rule 26(a)(2) report from a licensed physician to the effect that the drug caused the injury. That requirement is affectionately known as a Lone Pine order, because it debuted in a New Jersey case of that name. Lone Pine orders are, along with the incandescent light, the submarine, transistors, air conditioning, and Newark hot dogs, among the greatest inventions in the history of the Garden State.

As the Xarelto court tells us, the “basic purpose of a Lone Pine order is to identify and cull potentially meritless claims and streamline litigation in complex cases.” We love them, plaintiffs hate them, and courts seem reluctant to impose them until some big-time settling has already occurred. Why, it’s almost as if some courts view Lone Pine orders as rewards to defendants who opened up their wallets – or as cudgels to rap the hands of holdout plaintiffs.

The pro se plaintiffs had not complied with the Lone Pine order, even though the court gave them several extensions. The defendants moved to dismiss the complaint.

Why not dismiss the complaint? What was the pro se plaintiffs’ excuse? The question almost answers itself, doesn’t it? The pro se plaintiffs did not comply because they were pro se plaintiffs. They asked the court to appoint pro bono counsel for them. The court refused, pointing out that, as a general matter, litigants have no right to court-appointed counsel in a civil case, and this wasn’t one of the exceptional circumstances calling for a different result. One wonders why no contingent fee counsel swooped in to the rescue. Could it be that the case was bereft of merit?

It’s not as if the pro se plaintiffs lacked eloquence. Here is how they explained their inability to secure a Rule 26(a)(2) causal affidavit:

The only way Plaintiffs could have complied with CMO 11 Rule 26 requirement was to commit the crime of kidnapping a licensed physician at gunpoint, hold him/her hostage, torture him/her until he/she agreed to read the 859 pages of Dexter Brown’s medical records, and then murder him/her so that he/she doesn’t identify the Plaintiffs to the police … BECAUSE NO LICENSED PHYSICIAN WAS WILLING TO PREPARE THE RULE 26(a) REPORT VOLUNTARILY WITH OR WITHOUT PAY.

Rather than reward the pro se plaintiffs’ admirable restraint and candor, the court dismissed the case with prejudice for failure to satisfy the Lone Pine order. Pity.

Actually, the real pity is that courts do not issue Lone Pine orders more often and sooner. It is not only pro se plaintiffs who cannot come across with causal affidavits; big chunks of bloated case inventories assembled by esquires will also exit the docket.

This case has been added to our Lone Pine cheat sheet.

MDLs are complicated.  MDLs are chaotic, messy, and ugly unless they have structure and order.  Bringing order to chaos.  Something this blogger has championed for what’s starting to be more years than she wants to readily discuss.  But without order, think of The Blob (the original 1958, Steve McQueen flick).  It creeps.  It crawls.  It eats you alive.  Same can be said of MDLs.  They have a way of growing at an alarming pace.  The number of plaintiffs.  The number of defendants.  The number of depositions.  The number of documents produced.  Just oozing out in every direction.  Eating up time, money, resources.  And, most of the creeping and crawling is directed at defendants.  Plaintiffs want to depose dozens of company witnesses (hundreds if you get into sales representatives).  Plaintiffs want millions of pages of documents, along with native productions of large databases.  And what do the individual plaintiffs have to do?  Usually no more than fill out a Short Form Complaint, a Plaintiff Fact Sheet, and sign some medical release authorizations.  And while they do that, very little is done to curb the mounting mass of lawsuits.

That is until it’s not just defendants who have to put up or shut up.  There is no doubt that requiring individual plaintiffs in an MDL to do something – anything – to justify his/her claim actually works to shrink the mass.  In the DDL biz, we call it Lone Pine, named for 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.  We keep track of the entry of Lone Pine orders in our cheat sheet, here.  And it should be no surprise that we are strong proponents of the Lone Pine orders, especially when entered early on in litigation.  They help clean house; shake off free-riders hoping to hang in until a settlement.

A decision last week from the Abilify MDL shows just how effective Lone Pine can be.  In re Abilify (Aripiprazole) Products Liability Litigation, MDL 2734, was created in October 2016.  Almost two years later, the court entered an order requiring every plaintiff to complete a Supplemental Plaintiff Profile Form (“PPF”) and supporting documentation by October 31, 2018.  That order provided that failure to comply would result in sanctions, “up to and including dismissal of a case.”  In re Abilify, MDL 2734, Order, at p.1 (N.D. Fla. Jan. 31, 2019).  As of last week, “over 400 plaintiffs” had failed to submit a PPF or submitted an incomplete PPF.  Id. at p. 2.  So the court issued an order to show cause why these deficient plaintiffs should not be dismissed.  Plaintiffs were given one week to respond – and just submitting the PPF and supporting documents isn’t going to be enough.  Id.

So, how is this Lone Pine? It’s a matter of substance over form.  The court doesn’t call the PPF process Lone Pine, but if you look at what plaintiffs were being asked to do – it’s all there:

Proof of use:  Plaintiffs had to state whether they had records documenting use of the product.  If so, they had to produce them and if not, they had to explain why not.  Why not indeed.  No lawsuit should be filed without first obtaining proof of product usage.  Production of pharmacy/dispensation records should not be a hardship for any plaintiff 2 years into a litigation.

Proof of injury:  Plaintiffs had to state whether they had ever been diagnosed with their alleged injury.  If they were diagnosed, they had to produce the records confirming the diagnosis.  If they did not have such records, they had to produce a “physician certification attesting that you have been diagnosed with [your alleged injury] and that your symptoms began while on Abilify, and identifying all information and records on which the physician relied.”  In re Abilify, Order, MDL 2734, Dkt. 986-1 (N.D. Fla. Aug. 31, 2018).  Definitely Lone Pine territory.  If you claim you suffered your injury, you have to have proof.  Again, we think that’s something plaintiffs should have before they file suit, so it is completely reasonable to ask for it well after that point.

The PPF process is a common one in MDLs, but it has to have teeth and it has to have an enforcer.  If a PPF only requires plaintiffs to reiterate their allegations and not back them up with documentation, it really doesn’t do anything to weed out meritless claims.  Likewise, the court has to be willing to dismiss plaintiffs who don’t comply.  If you don’t do the work, you don’t get your case.  The next step is more difficult and one we wish more courts would take – diving into the ooze.  For the hundreds of plaintiffs who did complete the PPF, does the documentation support the allegation?  This starts to get too close to Daubert and summary judgment for many courts to feel comfortable, but from experience we know complete PPF/Lone Pine submissions are not the same as non-deficient submissions.  We also know assessing deficiencies is a lot of work.  Not fun work.  Not pretty work.  But the kind of work that brings order to chaos.  Lone Pine may just be to MDLs what a blast of cold air was to the The Blob.  It wasn’t dead, but at least it was stopped (“as long as the Arctic stays cold!”).

We love Lone Pine orders. First of all, we love the name. Makes us think of a cowboy eating beans under a scraggly tree. On the prairie. Listening to Dolly Parton. We also love Dolly Parton, whom we saw in concert last week here in Philadelphia. Too long a story for this blog, but suffice it to say that a 1977 Dolly Parton concert, just as we decided to take time off from college, convinced us that we wanted to move to Nashville, where we knew no one and had neither job nor place to live. Ask us about that adventure some time – we love to tell the story.

Somewhat less romantically, as most of you know, Lone Pine orders get their name from the landfill that was the subject of Lore v. Lone Pine Corporation, 1986 WL 637507 (N.J. Super. 1986). The case involved plaintiffs who alleged they had suffered personal injury and diminution of the value of their property because of polluted waters from the nearby Lone Pine Landfill. The court entered an order requiring plaintiffs to provide reports of medical experts supporting their personal injury claims and reports of real estate experts supporting their claims that their property values had diminished and that the diminution was caused by pollution from the landfill. When plaintiffs produced their experts’ reports, the court found that the reports were inadequate to establish a prima facie case and dismissed all of the plaintiffs’ claims with prejudice. Lone Pine includes one of our favorite quotes: “This Court is not willing to continue the instant action with the hope that the defendants eventually will capitulate and give a sum of money to satisfy plaintiffs and their attorneys without having been put to the test of proving their cause of action.” Lone Pine, 1986 WL 637507 at *4.

To us, as lawyers who practice in the mass tort space, this principle and the Lone Pine orders it has spawned represent salvation from the huddled masses of meritless plaintiffs’ claims lying in wait for eventual settlement checks. As such, we are always delighted when another judge enters a Lone Pine order requiring plaintiffs to demonstrate that their claims have merit or suffer dismissal. (Because they’re a valuable defense tool, we keep a cheat sheet of successfully-obtained Lone Pine orders here.) Recently, the judge in the Zimmer Nexgen Knee Implant MDL entered such an order. You can see the order here . The order requires existing plaintiffs pursuing claims for particular types of injuries to provide expert declarations substantiating their claims by September 1, 2016. Plaintiffs who miss this deadline will be required to provide their declarations by October 21, 2016, accompanied by briefs showing cause for their failure to provide the declarations on time. Plaintiffs who still have not complied by November 4, 2016 will see their cases dismissed with prejudice. New plaintiffs must submit expert declarations within 180 days of filing suit.

It is an aggressive order. We applaud the Knee Implant MDL judge, and we’d like to see every mass tort judge follow her lead. We dare to imagine a world in which plaintiffs are forced to prove injury and causation before they collect money. But we are dreamers, no less now than in 1977.

 

After our last two posts, we received emails blasting us for being insensitive to the plight of injured plaintiffs.  That struck us as unfair, given that the posts pertained to the technical issues of choice of law and choice of forum.   There was certainly no display of mirth over anyone’s maladies.  But now we are feeling a wee bit gun-shy, so this week’s report steers clear of anything remotely incendiary.

In fact, it is not even about a drug or device litigation. Rather, the case involves an environmental dispute.  But it is interesting because it includes a “Lone Pine” order, something that mass tort defendants often ask for but less often actually get.  Named after a case from New Jersey, a Lone Pine order forces mass tort plaintiffs to furnish some concrete proof, often in the form of an expert affidavit, establishing basic facts such as product usage and medical causation.  Lone Pine orders can be an effective method for ensuring that mass tort inventories are not built up with frivolous cases.

This week’s case under review is Modern Holdings, LLC et al. v. Corning Inc., et al., 2015 WL 6482374 (E.D. Ky. Oct. 27, 2015).  The magistrate judge apparently thought that discovery was moving along too slowly, and entered an order requiring personal injury plaintiffs to submit affidavits explaining: (a) the specific illness sustained, (b) the date of diagnosis and information about the medical provider rendering the diagnosis, (c) the toxic chemical allegedly causing extensive illness, including manner, pathway, dates, duration, and dose, and (d) the scientific literature supporting causation.  Property damage plaintiffs were required to submit affidavits explaining: (a) property address, (b) facts re contamination, and (c) degree of diminution in value.   The plaintiffs sought reconsideration from the district court.

Continue Reading Never Say Never to Lone Pine Orders

We think Lone Pine orders are fair and useful tools, and we believe that courts should use them more often, not less.  We learned last week that the Colorado Supreme Court disagrees, at least when reviewing the particular order that was presented in Antero Resources Corp. v. Strudley, No. 13SC576, 2015 WL 1813000 (Colo. Apr. 20, 2015).  We will get to the Colorado opinion in a minute, but first, what is a Lone Pine order?  We would forgive you for asking because the first time we heard the term sometime in the late 1990s, we thought it was a reference to the 1985 blockbuster Back to the Future (fans of Michael J. Fox will immediately understand why).

Alas, Lone Pine refers neither to a time machine nor to a single evergreen standing in a suburban mall parking lot.  A Lone Pine order is an order under which the plaintiff in a personal injury lawsuit has to come forward with evidence of a prima facie case, or at least part of a prima facie case, before he or she can proceed further.  Such orders are named for a 1986 New Jersey case, Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Nov. 18, 1986), which is most often cited as the progenitor of the species.  The idea is that a plaintiff can plead anything, in whatever form, and while TwIqbal brought on a welcome reboot of pleading standards in federal court, we have seen how creative pleading can get cases into discovery even when the claims have no arguable merit.

The rubber hits the road when the plaintiff has to produce evidence sufficient to support his or her claims, and that is where Lone Pine orders come in.  They come in various forms, but Lone Pine orders most often require that the plaintiff submit proof of product use or exposure and a certification from a medical expert stating that the use or exposure caused the plaintiff’s injury.  Doesn’t sound too onerous, does it?  This is the kind of information that plaintiffs should have marshaled even before filing a lawsuit, and many plaintiffs’ attorneys undertake this due diligence before filing, maybe even most.  Many do not.  In today’s environment of “mass tort” litigation, some attorneys see value in building inventories of filed cases without regard to the merits of the claims, and when that happens, a Lone Pine order can be the way out.  Take for example a large group of cases in which taking the plaintiffs’ and prescribing physicians’ depositions resulted in the voluntary dismissal of 25 percent of the cases (this is not a hypothetical).  An order requiring plaintiffs to produce expert opinion on medical causation before discovery may have been useful.  Because they’re a valuable defense tool, we keep a cheat sheet here of successfully-obtained Lone Pine orders.

Continue Reading Lone Pine Order Reversed: Rocky Mountain Low

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.

  1. Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Nov. 18, 1986).
  2. 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).
  3. 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)
  4. 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”).
  5. 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).
  6. 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.”
  7. 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).
  8. 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).
  9. 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)”).
  10. 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”).
  11. 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).
  12. 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)
  13. 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”).
  14. 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).
  15. 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).
  16. 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).
  17. 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.).
  18. 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)
  19. 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).
  20. 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”).
  21. 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”).
  22. 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.
  23. 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).
  24. 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).
  25. 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”).
  26. 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).
  27. 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).
  28. 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).
  29. 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).
  30. 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).
  31. 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).
  32. 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).
  33. 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).
  34. 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).
  35. 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.”).
  36. 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”).
  37. 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).
  38. 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.
  39. 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).
  40. 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).
  41. 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).
  42. 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).
  43. 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).
  44. 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).
  45. 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).
  46. 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).
  47. 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).
  48. 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).
  49. 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).
  50. 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).

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 . . . .”

You may have read in the legal or mainstream press that the Fifth Circuit rejected challenges to the Vioxx Master Settlement Agreement. In re Vioxx Products Liability Litigation, 2010 WL 2802352 (5th Cir. July 16, 2010). That’s all well and good, but what really interested us was not given significant play in the media, perhaps because it primarily interests mass tort law geeks like us: The court affirmed the dismissal of plaintiffs who failed to comply with a Lone Pine order. In light of our firm’s involvement in the Vioxx litigation we’ll follow the Thelonious Monk approach and serve up the court’s reasoning and holding straight, no chaser.

For the uninitiated, Lone Pine orders (which we blogged about before here and here) require plaintiffs to produce some basic evidence supporting their claims – usually evidence of exposure to defendant’s product, injury, and proof that the exposure caused the injury – or face dismissal. Trial courts commonly use Lone Pine orders in mass tort litigation to eliminate meritless claims, but appellate court rulings on Lone Pine orders are unusual, which is why this opinion made us do the Carlton dance.

According to the Fifth Circuit’s opinion, the Lone Pine order in the Vioxx litigation, PTO 28, required non-settling plaintiffs to notify their healthcare providers to preserve evidence pertaining to the plaintiffs’ use of Vioxx; produce pharmacy records, medical authorizations, and interrogatory answers; and produce a medical expert’s report attesting that the plaintiff sustained an injury caused by Vioxx and that the injury occurred within a specified time period. 2010 WL 2802352 at *1. Plaintiffs who failed to comply could have their claims dismissed with prejudice. Id.

A couple of groups of plaintiffs, including a group called the Dier plaintiffs, complained that PTO 28 was premature and burdensome. The court denied the motion but gave plaintiffs additional time to comply. Some plaintiffs still refused to comply. On Merck’s motion, the court dismissed with prejudice the Dier plaintiffs’ complaints for failure to comply with PTO 28. Id. at *3.

On appeal, the Dier plaintiffs claimed that the district court abused its discretion by requiring a case-specific expert report. The Fifth Circuit noted that the district court had relied on Acuna v. Brown & Root Inc., 200 F.3d 335 (5th Cir. 2000), one of those few federal appellate rulings on a Lone Pine order. The Dier plaintiffs said their situation was different because supposedly they alleged precise injuries and Merck was aware of their injuries and the injuries’ link to Vioxx. The Fifth Circuit found those arguments insufficient “to warrant bypassing the clear holding in Acuna that it is within a court’s ‘discretion to manage the complete and potentially very burdensome discovery that the cases would require.’” 2010 WL 2802352 at *6 (quoting Acuna at 340).

The Dier plaintiffs’ last gasp was to challenge PTO 28 because, they claimed, expert testimony is not needed under New York law for negligent infliction of emotional distress claims. The court rejected that argument given that the Dier plaintiffs all alleged physical injuries. Id. The court therefore affirmed the dismissal of their claims. Id.

Regrettably, the Fifth Circuit designated its opinion not for publication and not precedential, presumably because its decision essentially followed its published, precedential decision in Acuna. Id. at *1 n.*. Nonetheless, those of you looking for a federal court of appeals decision affirming a Lone Pine order in a drug case are free to cite this opinion. See Fed. R. App. P. 32.1.