It is bad enough that the mass tort system in our country approximates a system of jackpot justice that, if it ever does justice among the parties, does so accidentally. But its wild inefficiencies and inconsistencies also have macro adverse effects on things like consumer choice and the overall healthcare system.

A recent law review article offers further support for our scurvy view of mass torts by explaining how the long, inglorious history of lawsuits against contraceptives has hurt consumers and society. The article is by Eric Lindenfeld, is entitled “The Unintended Pregnancy Crisis: A No-Fault Fix,” and it appears in the Spring 2016 issue of the Marquette Benefits & Social Welfare Law Review.

The article begins by outlining the unintended pregnancy crisis, which is caused at least in part by dissatisfaction with current methods of contraceptives. The article argues that the less-than-robust portfolio of available contraceptives is attributable to a stagnant research and development milieu for new contraceptives. That stagnant milieu is attributable, in turn, to the frenzy of mass torts against contraceptives. The article recites the history of litigation against the birth control pill, Dalkon Shield, Norplant, as well as more recent litigations, such Yaz/Yasmin, Mirena, and Essure. Not all of those litigations were particularly successful for plaintiffs. Not all possessed any merit. For example, the article cites evidence that Norplant turned out to be safe and efficacious – but the expense of the litigation and the enormous adverse publicity drove the product from the market. The real losers were consumers.

Continue Reading Law Review Article Argues that Contraception Mass Torts Injured Consumers

A lot of companies rely on retired and otherwise former employees for information in litigation – including product liability litigation. Particularly where a product (such as a drug that’s now gone generic) has a long history, they are often the best source of knowledge about what happened years ago.  In dealing with ex-employees, however, defendants must keep in mind that, for purposes of the attorney/client privilege, discussions with ex-employees are subject to being treated much differently (and less protectively) than corporate communications with current employees.

The recent case, Newman v. Highland School District No. 203, 381 P.3d 1188 (Wash. 2016), although not involving prescription medical products, or even product liability, is a cautionary tale.  The defendant in Newman was a governmental entity, a school district.  The plaintiff alleged that he suffered a brain injury playing high school football, and that the injury occurred because the plaintiff was allegedly allowed to play in a game the day after suffering a concussion in practice.

The plaintiff in Newman didn’t sue until some three years after the injury. Id. at 1189-90.  By then, most of the coaching staff had turned over, and the individuals with the best knowledge of what had happened were employed elsewhere.  The school district’s litigation counsel contacted the ex-coaches and when they were deposed, claimed to represent them.  Id. at 1190.  Plaintiff challenged that representation as a conflict of interest and “sought discovery concerning communications between [the defendant] and the former coaches.”  Id.  The defendant resisted discovery with a claim of attorney/client privilege, and plaintiff opposed.  The defendant lost, and appealed denial of its motion for a protective order.  Id.

Continue Reading A Reminder To Be Careful With Ex-Employees And Confidential Information

We’re pleased to report the demise of a plaintiff’s firm’s attempt to punish the FDA for rejecting the firm’s attempt to force the agency to create evidence helpful to plaintiffs in litigation. The ploy began in 2012, when “a law firm that represents hundreds” of plaintiffs in prescription drug mass tort litigation “on a contingency fee basis” “filed a citizen petition with the [FDA].”  Sheller, P.C. v. U.S. Dep’t of HHS, 119 F. Supp.3d 364, 368 (E.D. Pa. 2015). Plaintiff sought agency action that it could, in turn, parade before juries in the underlying mass tort, specifically: “that the FDA immediately revoke the [relevant] indication for the . . . [d]rugs” at issue or alternatively “require that labeling for those drugs include a black box warning based on the lack of sufficient data to prove their safety.”  Id.  In addition, the plaintiff law firm sought to enlist the FDA in evading a confidentiality order (originally agreed to by the law firm) that protected discovery which the defendant in the underlying litigation had provided.  Id.

So far, so what?  While annoying, attempts of this nature to embroil the FDA in mass tort prescription medical product litigation are part of the other side’s play book.  (((Bexis))) recalls similar machinations during the Bone Screw litigation whereby the plaintiffs did everything they could (ultimately unsuccessfully) to prevent the Agency from adding to those products’ labeling previously off-label uses that had become the medical standard of care – because the Bone Screw plaintiffs’ litigation strategy was based on the procedures in question being off label.

The Bone Screw plaintiffs failed, 63 Fed. Reg. 40025-41 (FDA Jul. 27, 1998) – as did the law firm plaintiff in Sheller (119 F. Supp.3d at 368) – since the FDA normally has little patience for the junk science that the other side routinely peddles in mass tort litigation.  The plaintiff law firm in Sheller would have been off not filing the petition at all, since according to plaintiff, “the FDA decision to deny its petition “has been used as the basis to assert federal preemption and other [defense] arguments against [plaintiff’s] clients in [mass-tort] litigation.”  Id.

No kidding.  That’s the down side this sort of litigation strategy.  Attempts to involve the FDA in litigation have the risk that, if one loses, the FDA’s actions can create a positive narrative for the other side.

But plaintiffs believe in the doctrine of “heads I win; tails you lose.”

So in Sheller the plaintiff law firm attempted to gin up, from their failed strategy, a tort cause of action – not an administrative claim – against the FDA.  Talk about a bootstrap.  The plaintiff law firm was the one that involved the FDA in the first place.  The bizarre theory of liability postulated that, if the FDA wouldn’t cooperate in creating pro-plaintiff evidence/themes in the underlying litigation, that required the plaintiff law firm to work harder and spend more money to come up with something that juries might believe.  So the law firm sued the FDA to recover its purportedly increased litigation costs:

Plaintiff [claims] . . . that the FDA denial of [its] citizen petition increased [its] costs in litigating [because] . . . the defendant . . . has argued that the FDA’s denial of the Petition proves, as a matter of law, that the [drug’s] label is adequate. . . . Plaintiff argues that it must continue to expend resources in defending against that argument, and it faces the risk that a Court will accept it, lowering [plaintiff’s] contingent fee recovery.

Sheller, 119 F. Supp.3d at 369-70 (quotation marks omitted).

Continue Reading Bootstrapped Claim Against the FDA Gets the Boot

Today we have a guest post from Reed Smith‘s Jaclyn Setili, about one of our pet peeves – MDL plaintiffs (and their counsel) who think they don’t have to do any work at all on their cases, and simply show up come settlement time with their hands out.  In this instance, they received a much deserved comeuppance.  As is the case with all our guest posts, Jaclyn deserves all the credit for what follows, as well as any blame.

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At last, friends, it’s that time of year again. Time to dust off the sweater vest, memorize your favorite college football team’s schedule (Go Blue), and indulge in the ubiquitous pumpkin-spice-flavored everything.  In fact, just the other day as we were jogging along the Schuylkill River Trail, after an oppressively hot and humid summer, we glimpsed the first few yellow leaves of the year as they gently, and gracefully, made their journey to the asphalt, and our heart leapt with joy and relief.

Unlike spring, however, autumn is not a time for fresh hope or new beginnings.  Rather, the season reminds us of the inescapable promise that another year is nearing its eventual terminus.  A recent opinion from the Southern District of Florida, In re Denture Cream Products Liability Litigation, — F. Supp.2d —-, 2016 WL 4582185 (S.D. Fla. Aug. 31, 2016), encapsulates that idea:  the fundamental truth that every summer—like every lawsuit—must come to an end.  Winter, friends, is always coming.

In re Denture Cream is another order from the denture cream MDL, which we have covered on several prior occasions, i.e. here and here.  To remind you, the JPML consolidated multiple cases in MDL 2051 on September 12, 2011, finding that they all shared common questions of fact concerning allegations that the level of zinc found in certain brands of denture cream may cause copper deficiencies and neurological injuries.  The opinion we discuss today, however, involves a frequent bane of MDL defendants – the plaintiffs who try to lie back, hide in the weeds, do as little as possible, and share in an eventual settlement.  This time, it didn’t work out so well for those plaintiffs.

Continue Reading Guest Post – With No General Causation Experts, Denture Cream Plaintiffs Drop Like Leaves In Autumn

An article forthcoming in the California Law Review has been posted on SSRN and is worth reading:  Bradt & Rave, “The Information-Forcing Role of the Judge in Multidistrict Litigation.”   The authors describe how MDL proceedings have come to dominate the federal civil docket – making up nearly half the caseload.  MDLs have to some extent supplanted class actions, while sharing some of the principal-agent problems that plague class actions.  The authors insist that the most serious problem is that the plaintiff lawyers making many of the key decisions in an MDL (usually adorned with the regal title of “the plaintiff steering committee”) do not represent all the plaintiffs.  That problem rears its head in a particularly ugly fashion when it comes to settlements.  Individuals get treated as an aggregate and some make out better than others for no reason grounded in rationality or fairness.  It can hardly arrive as news that plaintiff lawyers might steer more dollars toward their cases than others.  But while a class action judge has a well-defined role/duty to approve or disapprove class action settlements, MDL judges lack such authority.  The authors are distressed by this state of play, because, in their view, MDLs are built for settlement:  “The MDL statute was developed as a judge-centric model – its framers intended that judges would wrest control of cases from the litigants and guide the litigation to a conclusion that would relieve the federal courts of potentially crushing caseloads.”

What’s the solution to the principal-agent dilemma in MDLs?  The authors point with favor to the judge in the World Trade Center Disaster Site Litigation who expressed the view that a proposed settlement was not enough.  That judge, according to the authors, based his authority to reject the settlement on a quasi-class action theory created by Judge Weinstein the Zyprexa MDL.  The WTC judge acted as an ‘information intermediary.”  Once he put it out there that the settlement was, by his lights, unfair, it was not possible to cram down the settlement when most of the plaintiffs would have heard what the judge said.  Bradt & Rave argue that this information intermediary role is an important one for MDL judges, because the MDL lawyers are not reliable sources of information.  It is hard to argue with that last point.

But how reliable are judges?  To the authors’ credit, they acknowledge points made by other scholars questioning the quasi-class action model.  Many (most? all?) judges have a strong interest in settling cases.  The danger of that predilection is, according to the authors, that judges might approve settlements that are unfair to some plaintiffs.  That’s true as far as it goes.  Nevertheless, there is another unfairness danger, and it  does not seem to bother the authors much or at all:  judges in some aggregated proceedings do their utmost to strong-arm settlements that are unfair to defendants.  In the conclusion of the article, the authors tell us that “Settlement is good.”  That’s sort of a Mom and apple pie sentiment, isn’t it?  Yes, there is a Lincoln quote out here somewhere praising the concept of settling litigation.  Fine.  We know we’ll get a reaction as if we passed gas in church when we say this, but, hey, Not All Settlements are Good.  Some are neatly wrapped packages of extortion.   A sentence or two later, the authors write that “the beauty of MDL is that, by gathering all of the players into a single forum under the watchful eye of a coordinating judge with substantial flexibility, it creates a fertile environment to facilitate a comprehensive resolution.”  Fertile, indeed.  There is a lot of fertilizer in that field. Most of the cases in any MDL inventory are meritless – plaintiffs who suffered no injury, or suffered the injury before they used the product, or never used the product at all.  And yet far too many MDL judges act as if any defendant who does not gallop over to the plaintiff steering committee with a settlement offer, a grid, and an open checkbook needs a spanking.  We have seen judges rule against defense motions, or fail to rule at all, as a way of punishing defendants who seem insufficiently eager to settle.  Even more commonly, when a judge wants to inspire defendants to settle, the judge will order absurd trial schedules, often with cases consolidating plaintiffs so as to maximize prejudice and the specter of huge verdicts.  Information forcing?  Call it what it really is: settlement forcing.

Continue Reading MDL Judges: Information-Forcing or Settlement Forcing?

This weekend, the Drug and Device Law Rock Climber hosted a sleepover to say goodbye to her friends as she headed back to college. Somehow, between our last survey of heads on pillows and the convergence on the breakfast table, the number of non-resident young adults increased, prompting the logical question (as we cracked a few more eggs), “How did you guys get here?”

In In re Mortgage Electronic Registration Systems (MERS) Litigation, 2016 WL 3931820 (D. Ariz. July 21, 2016), the United States District Court for the District of Arizona asked a similar question.  This is obviously not a drug or device case, but it is relevant to all of us who defend clients in MDLs. In MERS, cases related to the formation and operation of the subject mortgage registration systems were consolidated in an MDL.  After the court dismissed a number of associated cases, the plaintiffs filed a Consolidated Amended Complaint (“CAC”). One of the named plaintiffs in the CAC had not been named in the previous complaint and “had never filed a lawsuit that the Judicial Panel on Multidistrict Litigation transferred to [the court].” MERS, 2016 WL 3931820 at *1.

A complicated procedural sequence ensued. The district court dismissed the CAC for failure to state a claim upon which relief could be granted.  In its discussion of its dismissal of Count I of the CAC, the court stated, “[The new] alleged Plaintiff . . . is not a named Plaintiff in any member case of this MDL.  Accordingly, Plaintiffs’ claim cannot rest on allegations relating to [this plaintiff].”  Id. at *1.  The Ninth Circuit affirmed the dismissal of the CAC except that it reversed and remanded as to Count I.  And so, the parties ended up back before the MDL court, where the defendants moved for summary judgment on the new plaintiff’s claims.  The defendants argued, “[This plaintiff] never filed a lawsuit that the [JPML] transferred to this Court.  Rather, [he] was joined when Plaintiffs filed their Consolidated Master Complaint – which is impermissible – and thus, this Court’s jurisdiction has not been invoked.” Id. at *2 (citations omitted).  In the alternative, the defendants asked that the new plaintiff’s claims be dismissed for lack of jurisdiction.

The court requested supplemental briefing on the following questions: 1) Does a transferee MDL court have the authority to join ‘new’ plaintiffs in an MDL when such plaintiffs never filed their own case (nor paid the filing fee) and never had their cases transferred to this Court by the panel on multidistrict litigation; and 2) what was the basis for federal subject matter jurisdiction over the new plaintiff’s case. Id. In their supplemental brief, the plaintiffs argued that the new plaintiff’s case was properly joined in the MDL because, like other plaintiffs, the defendants were allegedly involved in recording false documents related to the new plaintiff’s property.  Plaintiffs also argued that the court had diversity jurisdiction over the new plaintiff’s claims.  The defendants countered, “The jurisdictional issue relating to [the new plaintiff] does not involve whether there was diversity jurisdiction or federal question jurisdiction relating to [his] claims.  Rather, the issue is whether the Court’s jurisdiction is sufficiently invoked because [the new plaintiff] never filed a lawsuit in this federal court or in any other federal court that was then transferred to the MDL Court by the [JPML].” Id. at *3.

Continue Reading MDL Court Says “You Don’t Belong Here” to Plaintiff “Added by Amendment”

This is our vacation week, so it’s time once again to play the game of “Where in the World is Stevie Mac?”  Last year, we wanted to visit a place with nice sights, great beer, and, most of all, zero chance of terrorism.  We chose Belgium.  Let that sink in for a moment.  This year should be easier.  The animating factors in 2016 — fear of jet-lag, fear of poverty, and, yet again, fear of terrorism – conspired to keep us fear-ly close to home.  Enjoy these hints:

  • Hello misnomer!
  • It never ratified the 18th amendment (prohibition – so, yes, this is our kind of place).
  • There is a specific law against biting off someone’s leg.  (The legislators here have obviously gotten a little too into The Walking Dead.)
  • The first American ever jailed for driving his car too fast earned that distinction by going a rip-roaring 15 mph here in 1904.
  • Cap guns are illegal in this state.
  • You will be fined if you throw pickle juice on a public trolley.  That rule will frustrate the DDL Son to no end.
  • Finally, our all-time favorite basketball player, Marvin Barnes, hailed from these parts.   Barnes (nicknamed “Bad News”) was part of a gang of high schoolers arrested for robbing a bus.  The victim had no trouble identifying Barnes, who had been wearing a letter jacket with his name embroidered on it.  That brush with the law did not stop Bad News (later shortened to “News”) from having a remarkable hoops career.  Barnes began his professional career with the ABA’s St. Louis Spirits.  Once upon a time, his team was scheduled to fly home from Louisville at 8 o’clock.  Because of the East-to-Central time zone change, the flight was scheduled to arrive in St. Louis at 7:56.  Barnes refused to board the flight.  In his immortal words, “I ain’t getting on no time machine.”  Instead, he rented a car and drove home.  Sadly, Barnes died way too young (62) a couple of years ago.  Let’s pour out a little White Ship Lovecraft IPA in his honor this week.

Continue Reading DDL Summer Vacation: Another Sequel

This is one of those stories you simply cannot make up.

We were using technology to get some ideas about technology. That is, we were surfing around the internet to find descriptions of the successful use of technology in litigation. Our eyes grew weary as we scrolled from screen to screen. There was a lot of same-old-same-old. Then we found an article in the Legal Times from 2005 entitled, “Jurors, Watch the Screen.” You can see the article here. Even as far back as 2005 it was becoming clear that one could use snazzy technology without suffering from the Goliath effect – the perception that your client must have deep pockets. After all, both sides at trials and depositions were using PowerPoints, videos, and arresting graphics. Jurors had come to understand that anyone with a laptop could put on a multi-media show. (Lawyers used to talk about a trial-in-a-box. But by 2005, we went up against a plaintiff lawyer who had a trial-in-a-laptop. He was smooth. He was impressive. He lost.)

Continue Reading Seen on the Screen

It was right after our selfie with Minion Captain America that we saw it. We were marching up and down the aisles, dodging empire storm troopers. Bright lights and backbone-rattling sounds shot out of the Nickelodeon and Star Trek pavilions. A tractor beam pulled us toward a booth hawking books on manga, the Golden and Silver Ages of DC Comics, the Benedict Cumberbatch Sherlock series on BBC … and a modest-looking blue book authored by our Constitutional Law professor. We waited for a phalanx of zombies to pass by so that we could move in for a closer look. What was a law text doing at Comic Con? (Maybe we are in no position to ask that question. After all, we spurned the long lines for the Hall H and Ballroom 20 Warner Bros. and Simpsons panels for a discussion by the Comic Book Legal Defense Fund on “Sex, Violence, and the Law.” Verily, we were a nerd among nerds.)

It is a bit hard to believe that someone is compiling statistics on law professor citations. Was it Kissinger who said that academic disputes are so vicious precisely because they are so trivial? In any event, Cass Sunstein leads the legal citation league standings by light years. When we took his class, he was a relatively humane practitioner of the Socratic method. He was considered one of the few liberals on the Chicago faculty, though that is a gross oversimplification both of his views and of those supposedly sitting on the other side of the spectrum. (Is Posner really a conservative?) Sunstein later went to his alma mater, Harvard Law School (aka the Death Star). He also worked for a while in the Obama administration. His mission was to make regulations more rational. Sunstein was well-suited for this mission, because he had been noodling over ways in which behavioral economics could inform the law. He was co-author of a somewhat controversial book, Nudge. That work explores how laws and regulations can steer people in better directions while preserving freedom of choice. It is a kind of Jedi mind trick. And now Sunstein has given us a charming little (under 200 pages) book, The World According to Star Wars.

The book is clearly a labor of love. Sunstein has always been a busy guy, but fatherhood afforded him an opportunity to catch up on the Star Wars saga. He dedicated the book to his son. Much of the book supplies interesting back-stories to Star Wars, and how so much of it was accidental. For example, if George Lucas’s father had his way, his son would never have gone into anything as frivolous as the film business. We never would have heard of Lucas, or certainly of Luke Skywalker.

Continue Reading Book Review: The World According to Star Wars

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).
  • 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, 3 Cal. App. 4th 1367 (Cal. 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 (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).
  • 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)”).
  • 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”).
  • 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).
  • 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).
  • 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, 507 (dismissing plaintiffs whose reports were inadequate)
  • In re Silica Prods. Liability Litig., 398 F. Supp. 2d 563, 576 (S.D. Tex. 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).
  • In re 1994 Exxon Chemical Plant Fire, 2005 WL 6252312 (M.D. La. Apr. 7, 2005) (entering Lone Pine order, 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.”)
  • 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., 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, 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, ___ F.3d ___, 2014 WL 2219109, at *3 (D.C. Cir. May 30, 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 (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.”).
  • 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).
  • Pinares v. United Technologies Corp., 2011 WL 240512, at *1 (S.D. Fla. Jan. 19, 2011) (entering Lone Pine order requiring plaintiffs to demonstrate a prima facie case that their property has been contaminated by the defendants’ conduct).
  • 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, at *3 (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, 244-45 (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).
  • Abner v. Hercules, Inc., 2014 WL 5817542, at *2-6 (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 6482374, at *3-4 (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.