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

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.


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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.


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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

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

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,

We posted last week about the Lone Pine order entered in the Celebrex litigation, and we received a few responses to that post.

Then we saw the letter from six drug companies to FASB, about which we posted on Friday.

The combination of those two things got us to thinking.

And if we’ve bothered