We’ve written about Lone Pine orders many times before. (Here and here, for example.) In brief, a Lone Pine order (so-called because that is the name of the seminal New Jersey case) requires plaintiffs to furnish medical evidence, usually in the form of an expert affidavit, showing that the plaintiff suffered from the
Earlier this year we blogged about the Lone Pine order entered in the Zostavax MDL that required those plaintiffs alleging that the anti-shingles vaccine caused them to get shingles (1,189 of them) to produce evidence of specific causation by means of a PCR test. The goal of the Lone Pine order was to winnow out non-meritorious claims. That was Part 1. Defendant’s motion to dismiss all 1,189 plaintiffs because not a single one produced the required test result or even asked for an extension – that was Part 2. Without evidence of specific causation, the court dismissed about half the cases in the MDL.
Shingles are caused by the same virus that also causes chicken pox, although the adult disease shingles is much more dangerous. The virus remains in the body for life and can either lie dormant or reactivate and cause shingles. Almost everyone over the age of 30 in the United States has had chicken pox and therefore carries the “wild-type virus” in their systems. In re Zostavax Products Liability Litigation, 2022 WL 17477553, *2 (E.D. Pa. Dec. 6, 2022). The vaccine consists of the Oka strain of the virus, a live-attenuated virus that is a weakened form of the wild-type. Defendant presented “uncontradicted medical authority” that the only way to know whether a person’s shingles was caused by the wild-type virus or the Oka strain is through a PCR test. In fact, plaintiffs’ own expert testified that specific causation could only be determined with a PCR test. Id. That is the same expert who failed to perform a differential diagnosis ruling out the wild-type virus in 5 bellwether cases that were therefore dismissed on summary judgment. That is what led to the entry of the Lone Pine order. If none of the bellwether plaintiffs had sufficient causation evidence, the court wanted to know which plaintiffs did.
Continue Reading Lone Pine Stands Tall in Zostavax MDL — Part 2
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
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.
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
We write as we prepare to head to the airport for a long weekend in Whitefish, Montana, a bit of paradise in in the Flathead River Valley of northwest Montana, just outside of Glacier National Park. As we have mentioned in other posts, Whitefish is the home of beloved friends of many decades, and we
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
Regular blog readers may recall that, every year, we eagerly await a Monday and Tuesday right around February 14th. This has nothing to do with Valentine’s Day (though we like a dozen roses and a box of chocolates as much as the next person.) No, at this time every year (for the past
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
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.