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!”).

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 eighteen or so) we cross our fingers that there is no blizzard, beg everyone in our work life to cover any emergencies, and head to New York for the Westminster Kennel Club Dog Show.  This year was the 141st annual show, and, as always, it was a mecca for all things dog.  As we ate breakfast in our hotel, we were visited by Mobius, a red Doberman so tall he had to lean down to attempt to taste our complimentary make-it-ourselves waffle.  To board the shuttle from the Hotel Pennsylvania (worthy of its own post) to Piers 92 and 94 for the daytime breed judging, we had to step over “Sky,” a 140-pound Greater Swiss Mountain Dog sprawled in the aisle of the bus, calmly oblivious to accidental bumps and kicks and happily kissing anyone who asked.  We live for this stuff, even if our chosen favorite almost never wins.

For the atmosphere is rarified. A few years ago, the show stopped being “champions only” and admitted “class dogs” – dogs still working their way through point-earning breed classes to achieve their championships – for the first time.  But, save for the infrequent upset, the group competition (the televised portion, in which the single winner of each breed competes against the winners from the other breeds in its “group” – sporting, herding, toy, etc.) is dominated by the very top-winning show dogs in the country.  Last year, we fell in love with a gorgeous German Shepherd Dog named Rumor.  She was a heavy favorite to win it all (“Best in Show”), but was upset by C.J. the German Shorthaired Pointer and settled for Reserve Best – second place.  And she retired, to raise beautiful puppies and live the life of a cherished house pet.

But, alas, said puppies did not get made on the first attempt. And, come January, Rumor’s owner/handler decided to give her one more shot at the big one.  So she “came back out,” showed at ten shows in January, and took one more run at the Garden.  And, this time, after upsetting the favorite, Preston the Puli, to take the Herding Group, she won it all.  It was very, very cool to witness.  And we already can’t wait ‘til next year.

And there was a blog-worthy lesson to be gleaned from it all (at least if you stretch a little): if you haven’t achieved everything you want, think about taking another shot.  And H.R. 985, a bill that passed the House Judiciary Committee this week, would pick up where CAFA left off (and then some) to correct still-rampant abuse of the system by class action and MDL plaintiff lawyers, to the detriment of our clients, the judicial system as a whole, and all too often, to the plaintiffs the lawyers ostensibly represent.

Under “Purposes,” the bill states: “The purposes of this act are to – (1) assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs with legitimate claims; (2) diminish abuses in class action and mass tort litigation that are undermining the integrity of the U.S. legal system; and (3) restore the intent of the framers of the United States Constitution by ensuring Federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles.”  Worthy goals all, if a trifle ambitious. The bill’s key points read like a set of nesting boxes – just when you think you’ve opened the last, there is another present inside.  Here are some highlights:

Class Actions

  • Injury allegations: this provision requires a court to deny certification unless “the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative.” This is ascertainability something for which we’ve advocated, and also something that our side tried unsuccessfully to get fixed through the Federal Rules Committee. Thus, the judiciary had its chance to fix this. Nothing happened, so now Congress is poised to step in. About time.
  • Conflicts of interest: this provision requires class counsel to state, in the body of the complaint, “whether any proposed class representative or named plaintiff in the complaint is a relative of, is a present or former employee of, is a present or former client of (other than with respect to the class action) or has any contractual relationship with . . . class counsel” and shall “describe the circumstances under which each class representative or named plaintiff agreed to be included in the complaint and shall identify any other class action in which any proposed class representative or named plaintiff has a similar role.”
  • Attorneys’ fees: “[N]o attorneys’ fees may be . . . paid . . . until the distribution of any monetary recovery to class members has been completed,” and “[u]nless otherwise specified by Federal statute, . . . the portion of any attorneys’ fee award to class counsel . . . shall be limited to a reasonable percentage of any payments directly distributed to and received by class members [and in] no event shall the attorneys’ fee award exceed the total amount of money distributed to and received by all class members.” We particularly like this because it would effectively put an end to cy pres, against which we’ve railed for years. By limiting the denominator for fee awards to “payments directly distributed to and received by class members” it prevents cy pres sums from being used to inflate fee awards.

There are other provisions, requiring stringent accounting provisions for settlement funds forbidding certification of issue classes unless all relevant Rule 23 prerequisites are satisfied (another thing our side tried first to fix through a change to Rule 23), and most significantly providing for severance of misjoined plaintiffs for purposes of jurisdictional determinations. This legislative elimination of fraudulent misjoinder is a key point, since it addresses the multi-plaintiff complaints we love to hate.

We note that since the “effective date” of this act provides for its application to all “pending” civil actions, cases currently in state court can be removed (or removed again) under the provision negating misjoinder as a means of preventing diversity-based removal to federal court.

Finally, in an issue close to our hearts as we daily encounter plaintiffs unwittingly victimized by so-called “litigation funders,” the bill provides, “In any class action, class counsel shall promptly disclose in writing to the court and all other parties the identity of any person or entity, other than a class member or class counsel of record, who has a contingent right to receive compensation from any settlement, judgment, or other relief obtained in the action.” A sunshine law for third-party funding is something else for which we’ve advocated.

Multidistrict Litigation:

  • Proof of exposure and injury: We were thrilled to see a “Lone Pine”-esque provision build into the MDL portion of the bill. It provides, in pertinent part, “In any coordinated or consolidated pretrial proceedings . . . , counsel for a plaintiff asserting” a claim seeking redress for personal injury [in the MDL] shall make a submission sufficient to demonstrate that there is evidentiary support (including but not limited to medical records) for the factual contentions in the plaintiff’s complaint regarding the alleged injury, the exposure to the risk that allegedly caused the injury, and the alleged cause of the injury . . . within 45 days after the civil action is transferred to or directly filed in the proceedings. That deadline shall not be extended. Within 30 days after the submission deadline, the judge . . . shall [determine] whether the submission is sufficient and shall dismiss the action without prejudice if the submission is found to be insufficient.” Thirty days later, in the continued absence of a satisfactory submission, the action is to be dismissed with prejudice. Not long ago, we advocated for amending the MDL statute to require early factual disclosure, with dismissal as the sanction for not disclosing enough to satisfy Rule 8. This is the functional equivalent.
  • Trial Prohibition (“waiving Lexecon”): MDL judges “may not conduct any trial in any civil action transferred to or directly filed in the proceedings unless all parties to the civil action consent to trail of the specific case sought to be tried.” This provision would remove the threat of MDL trials as a tool to force defendants to settle. It is something else for which we have advocated.
  • Ensuring Proper Recovery for Plaintiffs: MDL plaintiffs “shall receive not less than 80 percent of any monetary recovery obtained in that action by settlement, judgment or otherwise.”

While most of the press coverage seems to focus on class actions, to us the removal and MDL provisions are at least as important. The vast bulk of our professional life is spent in the mass tort space – mostly MDLs these days, with the occasional class action thrown in. We have become accustomed (but never inured) to plaintiffs without injuries herded by counsel who are their friends or bosses into mass actions in which they don’t belong. On the other end of the spectrum, we encounter severely injured plaintiffs who will recover next to nothing because lawyers and litigation funders own most or all of the plaintiffs’ stakes in the inevitable settlements. And, at every turn, we sit across the table from tanned and affluent plaintiff attorneys who are the only ones apparently immune to the vagaries of the system and who are the sole beneficiaries of its inequities. H.R. 985, as drafted, attempts to address many of these issues. We do have questions. Who defines “the same type and scope of injury,” for example? And we have doubts: can a bill possibly survive the powerful plaintiff attorney lobby when it attempts to resurrect the integrity of mass litigation by hitting those attorneys squarely in their pocketbooks? But we heartily and excitedly support this bill, and we know that some of its provisions are way, way better than none. We will keep you posted.

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.

  • Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Nov. 18, 1986).
  • 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).
  • 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, 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”).
  • 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).
  • 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.”
  • 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)”).
  • 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”).
  • 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”).
  • 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).
  • 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).
  • 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).
  • 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.).
  • 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)
  • 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).
  • 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., 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.
  • 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, 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).
  • 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, 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).
  • 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.”).  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).
  • 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).
  • 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).
  • 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).
  • 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 (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 (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).
  • 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.
  • 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).
  • 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).
  • 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).
  • 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).
  • 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).
  • 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).
  • 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).
  • 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).
  • 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).

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.

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 to think about something, then we’re sure as heck going to publish a post about it.

Here goes:

Why, we were asking ourselves, is it uniquely appropriate for judges to enter Lone Pine orders in mass torts?

Let us count the ways.

First, mass torts are characterized by indiscriminate solicitation of clients. (Don’t just take our word for it. Take — well — our word for it: We said the same thing last year, so it must be true.)

When lawyers are soliciting widely for clients who have merely been “exposed” to a product, the lawyers are unusually likely to pick up some chaff along with the wheat. Lawyers will sign up clients who didn’t even take the defendant’s product, and who certainly weren’t injured by it.

Second, because of the volume of cases involved, there’s often little or no personal contact between plaintiffs’ counsel and clients in mass torts. For a description of how a plaintiff’s firm processes mass torts, read what George Fleming told an ABA Task Force on the subject:

“Plaintiffs’ lawyers need many cases for mass torts to be profitable, but handling large numbers of clients is expensive. Plaintiffs’ lawyer George Fleming made a presentation to the Task Force about how his practice is organized to be able to communicate with thousands of clients and conduct discovery efficiently in all their cases. He has 36,000 square feet of office space, 250 employees, 100 staff lawyers, receptionists who can answer the phone in three languages, and a computer system that is comparable to the one that Southwest Airlines uses to manage its reservations. He has 100 workstations equipped to enable a staff lawyer to conduct telephonic depositions. His practice requires 22,000 square feet of off-site storage and a staff of ten just to manage the flow of paper. To send one standard letter to each of his clients in one mass tort case he handled cost his firm $20,000 in printing and postage. It does not make sense to have just a few clients, but managing thousands of clients is expensive.”

“Contingent fees in Mass Tort Litigation,” Task Force on Contingent Fees of the American Bar Association’s Tort Trial & Insurance Practice Section 112-13 (2004)

Third, when you combine widespread client solicitation with an absence of contact between client and counsel, there’s very little assurance that a claim is legitimate. The system lacks even the usual (small) safeguard that a lawyer and client have sat down together to discuss the viability of a claim.

And mass torts, because of their massive nature, typically involve injuries that are found widely in the general population, such as heart attacks, strokes, and the like. Huge litigation doesn’t typically involve “signature diseases,” such as mesothelioma and angiosarcoma of the liver. Legitimate evidence of causation may therefore be hard to find.

Many cases filed in mass tort litigation thus lack merit. See, e.g., In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1224, 1226 n.4 (9th Cir. 2006) (describing how court dismissed more than 850 claims when plaintiffs failed to respond to questionnaires seeking basic information underlying claims). Other cases filed in mass torts are simply fraudulent. See, e.g., In re Diet Drugs Prods. Liab. Litig., 381 F. Supp. 2d 421, 423 (E.D. Pa. 2005) (imposing sanctions when plaintiff alleged that she ingested drug seven years before it was on the market, from a prescription written by a fictitious physician and filled at a fictitious pharmacy).

Fourth, in mass torts, the cost of discovery is multiplied by the huge volume of claims.

Even in a one-off case, it’s offensive to force a defendant to obtain written responses to discovery, collect medical records, depose plaintiffs and health care providers, retain experts, depose opposing experts, wait for discovery to close, and research and draft a motion for summary judgment to cause a court to dismiss a claim that was meritless or fraudulent from the start.

But multiply that offense times hundreds — or thousands, or tens of thousands — in mass torts, and the injustice becomes transparent. Courts should not force defendants to spend millions of dollars in discovery to weed out the vast number of meritless claims likely present in a mass tort context. Judge Rothstein’s frustration in the PPA litigation was almost palpable when she said, “[T]he time has come to figure out which of these cases are real and which of them aren’t.” PPA, 460 F.3d at 1226. Since, in the end, one defendant in the PPA litigation paid money to fewer than 20 percent of the plaintiffs who filed claims against it, there’s an awful lot of chaff in them thar wheat. Courts should winnow out meritless claims quickly.

Fifth, mass torts and multidistrict litigation are “a special breed of complex litigation where the whole is bigger than the sum of its parts. The district court needs to have broad discretion to administer the proceeding as a whole, which necessarily includes keeping the parts in line.” PPA, 460 F.3d at 1232. There can’t be any doubt that the trial courts’ broad discretion to control mass torts includes the power to enter Lone Pine orders to put the plaintiffs to some level of proof early on in the proceedings.

Finally, precedent: Many courts overseeing mass torts have entered Lone Pine orders, so the courts’ power to do so (and the logic of entering those orders) is grounded in ample case law. See, e.g., In re Rezulin Prods. Liab. Litig., MDL No. 1348, No. 00 Civ. 2843 (LAK), 2005 WL 1105067 (S.D.N.Y. May 9, 2005) (entering Lone Pine order); In re Baycol Prods. Liab. Litig., MDL No. 1431 (MJD/JGL), 2004 WL 626866, at *1 (D. Minn. Mar. 18, 2004) (entering initial Lone Pine order, which was later amended); In re: N.Y. Rezulin Prods. Liab. Litig., Master Index No. 752,000/00, Order (N.Y. Sup. Ct. N.Y. Co. July 7, 2004) (entering Lone Pine order in New York state court coordinated Rezulin proceeding); 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).

And that’s not all! The MDL court entered a Lone Pine order in the Neurontin litigation, though we can’t lay our hands on it at the moment; we’ve read a report (that link is to Product Liability Law 360 on August 8, 2008, in case you need a subscription to open it) about a Lone Pine order being entered in connection with the Vioxx settlement (now at 557 F. Supp. 741); and now you have the Lone Pine order entered in Celebrex, about which we posted last week.

That ought to be plenty to make the point to any judge: Mass tort judges should pine for Lone Pine.

We were pleased to see that Judge Breyer has entered a so-called “Lone Pine” order in the Celebrex multidistrict litigation. Here’s a link to the order.

Lone Pine was a New Jersey state court case in which the judge ordered plaintiffs to offer proof connecting the defendant’s product to the plaintiff’s alleged injury. See Lore v. Lone Pine Corp., No. L-03306-85, 1986 N.J. Super. LEXIS 1626 (N.J. Sup. Ct. Nov. 18, 1986). 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.

As if more evidence were needed that the internet is a nifty contraption, here’s a link to a student law review note discussing Lone Pine orders and collecting some of the relevant cases.

Why does the entry of this order matter?

Because, in mass tort situations, plaintiffs’ counsel typically advertise widely in search of clients. Counsel often haven’t met with their clients, or discussed with them the validity of their claims, at the time the complaint is filed.

Unless a court does something to separate the wheat from the chaff, meritless claims — involving plaintiffs who never ingested the defendant’s drug, or who ingested it but the drug cured what ailed ’em — can remain pending for months or years. A court can weed out hundreds of meritless cases simply by entering an order that compels counsel to (1) meet with the client, (2) certify that the client ingested the defendant’s drug, and (3) confirm that plaintiff’s counsel believes in good faith that the action can proceed. And Judge Breyer’s order in the Celebrex litigation goes slightly further than that, requiring plaintiffs to retain an expert witness who will opine that Celebrex caused the plaintiff’s injury.

(The order also contains a step-by-step procedure for enforcement: Defendants first send plaintiff’s counsel a deficiency letter, then file a compliance motion with the special master, and then file a motion to dismiss with the trial court. Orders that lack detailed enforcement mechanisms often can’t readily be enforced, because judges give plaintiffs second, third, fourth, and fifth chances to meet missed deadlines. Defendants benefit from entry of an order that specifies a reasonable, but firm, procedure for causing cases actually to be dismissed.)

There’s one aspect of the Lone Pine order in the Celebrex cases that’s both slightly unusual and not obvious from the copy of the order that we received, which doesn’t include “Exhibit A.” According to this report from Pharmalot, the order applies only to cases filed by one plaintiff’s firm: Weitz & Luxenberg. We don’t know enough about what’s going on to comment on that peculiarity.

In any event, entry of the Lone Pine order is good news for the judicial system and good news for Pfizer. We predict that a fair number of Celebrex cases will be dismissed in the coming months as counsel are forced to think seriously about each of their client’s claims and realize that many of these cases ought to be abandoned.