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Considerations for Defense Counsel in Deciding to Seek, or Not to Seek, Lone Pine Orders in Mass Tort Litigation

Volume 85, No. 2

January 20, 2020

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Beck_James_sized James Beck
Beck_James_sized

James Beck

James Beck joined Reed Smith’s Life Sciences Health Industry, Product Liability, and Appellate Groups in the spring of 2012. Jim handles complex personal injury and product liability litigation. As a thought leader, Jim’s seminal law review article on off-label use was cited twice by the Supreme Court in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001). Since 2006, he has hosted and been the lead blogger for the influential Drug and Device Law Blog.

SO-CALLED “Lone Pine” orders are a hybrid litigation tool. Named after an unpublished New Jersey trial  court opinion,11 Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Super. Nov. 18, 1986).  The original Lone Pine order directed several hundred environmental plaintiffs to produce “sufficient information to establish the existence of a prima facie case.”  Id. at *1.  “[P]rior to the institution of such a cause of action, attorneys for plaintiffs must be prepared to substantiate, to a reasonable degree, the allegations of personal injury, property damage and proximate cause.”  Id. at *4. these orders are now “a common trial management technique in toxic torts cases with multiple plaintiffs.”22 Arias v. DynCorp, 752 F.3d 1011, 1014 (D.C. Cir. 2014); see in re Vioxx Products Liability Litigation, 557 F. Supp.2d 741, 743 (E.D. La. 2008) (Lone Pine orders are now “routin[e]” in mass tort cases).  For a periodically updated collection of decisions imposing Lone Pine orders, see Drug & Device Law, “Lone Pine Cheat Sheet” (originally posted Nov. 30, 2012) available at https://www.druganddevicelawblog.com/2012/11/lone-pine-cheat-sheet.html (last visited March 3, 2018). Such orders “provide[] a tremendous advantage to defendants wishing to dispose of frivolous claims quickly.”33 McManaway v. KBR, Inc., 265 F.R.D. 384, 385 (S.D. Ind. 2009) (citation and quotation marks omitted).

I. What Are Lone Pine Orders, and Why Are They Needed?

“Lone Pine” orders include various pretrial case management orders sharing requirements that plaintiffs come forward with evidentiary support – often in the form of expert testimony – for their allegations.44 Lone Pine orders relieve “potential burdens on defendants and the court in mass tort litigation by requiring plaintiffs to produce some evidence to support a credible claim,” such as “an affidavit from a qualified treating or other physician.”  Steering Comm. v. Exxon Mobil Corp., 461 F.3d 598, 604 n.2 (5th Cir. 2006). Such a requirement is hardly onerous, as this kind of information “should have” been marshaled by plaintiffs even “before filing their claims.”55 Acuna v. Brown & Root Inc., 200 F.3d 335, 340 (5th Cir. 2000) (“Acuna I”). Onerous or not, however, mass tort actions are frequently “filed with little regard for the statute of limitations and with so little pre-filing preparation that counsel apparently has no idea whether or how she will prove causation.”66 In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, 2016 WL 4705827, at *1 (N.D. Ga. Sept. 7, 2016).  Mass tort litigation “has produced incentives for the filing of cases that otherwise would not be filed if they had to stand on their own merit as a stand-alone action.”  Id. Multi-district litigations in particular have “become magnets for advertising-driven, poorly investigated (and often patently invalid) personal injury claims.”77House Report 115-125, “Fairness in Class Action Litigation Act of 2017,” at 5 (U.S. House of Rep. March 7, 2017). A defendant “cannot be required to bear the burden of costly discovery without any articulation by Plaintiffs of the basic facts in support of their  claims.”88Miller v. Metrohealth Medical Center, 2014 WL 12589121, at *2 (N.D. Ohio March 28, 2014). Thus, when plaintiffs bring such “action[s] without sufficient factual investigation and for the concerted purpose to coerce a settlement from Defendants,”99 Acuna v. Brown & Root, Inc., 1998 WL 35283824, at *8 (W.D. Tex. Sept. 30, 1998), aff’d, 200 F.3d 335 (5th Cir. 2000) (“Acuna II”). Lone Pine orders offer a way out.

II. How Lone Pine Orders Work

A Lone Pine order’s “basic purpose” is “to identify and cull potentially meritless claims.”1010 Baker v. Anschutz Exploration Corp., 2013 WL 3282880, at *2 (W.D.N.Y. June 27, 2013); see Trujillo v. Ametek, Inc., 2017 WL 3026107, at *2 (C.D. Cal. July 17, 2017) (“Trujillo II”). They “protect defendants and the Court from the burdens associated with potentially non-meritorious mass tort claims.”1111 Abbatiello v. Monsanto Co., 569 F. Supp.2d 351, 354 (S.D.N.Y. 2008); accord Ashford v. Hercules, Inc., 2015 WL 6118387, at *4 (S.D. Miss. Oct. 16, 2015). Such an order “should result in the prompt development of relevant information about each individual plaintiff’s exposure, injury and damage.”1212 In re 1994 Exxon Chemical Plant Fire, 2005 WL 6252312, at *1 (M.D. La. April 7, 2005), modified, 2005 WL 6252291 (M.D. La. April 29, 2005). Often, merely taking the plaintiffs’ and prescribing physicians’ depositions in a mass tort will result in voluntary dismissal of a significant percentage of the cases.1313 See Arias, 752 F.3d at 1015-1016 (163 plaintiffs properly dismissed for noncompliance with Lone Pine order); Uhrlaub v. Abbott Laboratories, 2017 WL 2130028, at *1 n.1 (S.D. Ill. May 17, 2017) (reporting that preliminary discovery in Depakote MDL concerning plaintiffs’ prescribing physicians reduced 600-plaintiff litigation by 17%); Adjemian v. American Smelting & Refining Co., 2002 WL 358829, at *5 (Tex. App. March 7, 2002) (mere entry of Lone Pine order caused dismissal of “more than 300” of 396 plaintiffs). “Although the content and scope of such orders varies from case to case, in general, Lone Pine orders require plaintiffs to make a prima facie showing of injury and causation by providing facts of an individual plaintiff’s exposure to alleged toxic substances, combined with expert medical testimony supporting the claims of injury and causation by the alleged toxic substances.”1414 Trujillo v. Ametek, Inc., 2016 WL 3552029, at *1 (S.D. Cal. June 28, 2016) (“Trujillo I”).

None of the federal civil rules, and few if any state rules, specifically address Lone Pine orders, so their requirements vary. There is no agreement about when in the litigation process they should issue.  Most federal courts rely on Federal Rule 16 as a basis for entering Lone Pine orders,1515 Avila v. Willits Environmental Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011); Acuna I, 200 F.3d at 340; Armendariz v. Santa Fe County Board of Commissioners, 2018 WL 377199, at *2 (D. N.M. Jan. 11, 2018); Marquez v. BNSF Railway, 2017 WL 3390577, at *1 (D. Colo. Aug. 8, 2017); Adkisson v. Jacobs Engineering Group, Inc., 2016 WL 4079531, at *3 (Mag. E.D. Tenn. July 29, 2016); Trujillo I, 2016 WL 3552029, at *2; In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, 2016 WL 614690, at *7 (E.D. La. Feb. 16, 2016) (applying maritime law); Russell v. Chesapeake Appalachia, L.L.C., 305 F.R.D. 78, 83 (M.D. Pa. 2015); Modern Holdings, LLC v. Corning Inc., 2015 WL 6482374, at *3 (E.D. Ky. Oct. 27, 2015); Ashford, 2015 WL 6118387, at *1; Abner v. Hercules, Inc., 2014 WL 5817542, at *2-6 (S.D. Miss. Nov. 10, 2014) (“Abner I”); Baker, 2013 WL 3282880, at *2; McMunn v. Babcock & Wilcox Power Generation Group, Inc., 896 F. Supp.2d 347, 351 (W.D. Pa. 2012); Hagy v. Equitable Production Co., 2012 WL 713778, at *3 (S.D.W. Va. March 5, 2012); In re Fosamax Products Liability Litigation, 2012 WL 5877418, at *2 (S.D.N.Y. Nov. 20, 2012); In re Digitek Products Liability Litigation, 264 F.R.D. 249, 256 (S.D.W. Va. 2010); McManaway, 265 F.R.D. at 385; Ramos v. Playtex Products, Inc., 2008 WL 4066250, at *6 (N.D. Ill. Aug. 27, 2008).  See 6A C. Wright & A. Miller, Federal Practice & Procedure §1525 & n.30 (3d ed. 2016) (discussing Lone Pine orders under Rule 16). with other courts also citing Federal Rule 11.1616 Acuna I, 200 F.3d at 340; Ashford, 2015 WL 6118387, at *3; In re Orthopedic Bone Screw Products Liability Litigation, 1998 WL 411370, at *1 (E.D. Pa. Jan. 13, 1998). State court rulings have been inconsistent.  The majority of states follow federal practice and permit Lone Pine orders.1717 Schelske v. Creative Nail Design, Inc., 933 P.2d 799, 802 (Mont. 1997) (Lone Pine order “wholly within [the court’s] discretion as a management tool”); Kinnick v. Schierl, Inc., 541 N.W.2d 803, 806 (Wis. App. 1995) (“[w]hether to impose the [Lone Pine] order is within the trial court’s discretion”); In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App. 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”); Cottle v. Superior Court, 5 Cal. Rptr.2d 882, 887 (Cal. App. 1992) (citing a court’s “inherent power to create new forms of procedure in particular pending cases”); Atwood v. Warner Electric Brake & Clutch Co., 605 N.E.2d 1032, 1037-1038 (Ill. App. 1992) (“the trial court acted within its authority”); In re N.Y. Rezulin Products Liability Litigation, slip op. at 1, Index No. 752,000/00 (N.Y. Sup. Aug. 2004); In re Love Canal Actions, 547 N.Y.S.2d 174, 176-178 (N.Y. Sup. 1989) (Lone Pine order appropriate under state rules and court’s “inherent authority”), aff’d as modified, 555 N.Y.S.2d 519 (N.Y.A.D. 1990) (affirmed except for ordering production of formal expert reports). However, the Colorado rules do not allow Lone Pine orders at all.1818 Antero Resources Corp. v. Strudley, 347 P.3d 149, 151 (Colo. 2015) (Colorado rules “do not allow” Lone Pine orders). Without rules to constrain them courts exercise significant discretion in crafting them – most frequently in multi-plaintiff mass tort and environmental cases.1919 See In re Rezulin Products Liability Litigation, 441 F. Supp. 2d 567, 570 (S.D.N.Y. 2006) (Lone Pine order necessary to require plaintiffs to “consider whether good grounds existed to continue prosecuting his or her claim”); In re Fosamax Products Liability Litigation, 2013 WL 4494427 (S.D.N.Y. Aug. 22, 2013) (purpose of Lone Pine orders is to “streamline litigation for eventual disposition”); In re Avandia Marketing, Sales Practices & Products Liability Litigation, 2010 WL 4720335, at *1 (E.D. Pa. Nov. 15, 2010) (Lone Pine order entered due to a “need to objectively identify which of the many thousand plaintiffs have injuries which can credibly be attributed to Avandia usage”). Over time, Lone Pine orders have become “routine” and understood to be within the “wide latitude” given to judges managing mass torts.2020 In re Avandia Marketing, Sales Practices & Products Liability Litigation, 687 Fed. Appx. 210, 214 (3d Cir. 2017); Vioxx, 557 F. Supp.2d at 743.

In individual actions, defendants commonly resort to TwIqbal pleading motions to obtain missing information.2121 “TwIqbal” refers jointly to the Supreme Court’s landmark pleading decisions construing Fed. R. Civ. P. 8 & 12, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Indeed, where TwIqbal motions are available, failure to seek dismissal under Rules 8 and 12 has weighed against entry of a Lone Pine order.2222 Russell, 305 F.R.D. at 84-85. Reluctance to impose Lone Pine provisions order is sometimes based on the belief that such orders lack the procedural safeguards that exist for motions for summary judgment under Rule 56 or to dismiss under Rules 8 and 12.2323 E.g., Adinolfe v. United Technologies, 768 F.3d 1161, 1168 (11th Cir. 2014); Simeone v. Girard City Bd. of Education, 872 N.E.2d 344, 344-345 (Ohio App. 2007); Adkisson, 2016 WL 4079531, at *4; contra Avila, 633 F.3d at 834 (“neither does the [Lone Pine] process skirt accepted procedure”).

In mass torts and multi-district litigation, however, defendants’ ability to file individual TwIqbal motions to dismiss or for summary judgment are often delayed or restricted, as are plaintiffs’ usual obligations to support their claims with affirmative evidence in responding to discovery.2424 E.g., In re Zimmer Nexgen Knee Implant Products Liability Litigation, 2012 WL 3582708, at *4 (N.D. Ill. Aug. 16, 2012) (“With more than 549 individual actions . . . [t]he proper court to hear dispositive motions concerning the sufficiency of plaintiff-specific allegations is the transferor court”); In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico, on April 20, 2010, 808 F. Supp.2d 943, 965 (E.D. La. 2011) (“the Court does not intend to engage in the process of sorting through thousands of individual claims . . . to determine which claims have or have not been properly presented”), aff’d on other grounds, 745 F.3d 157 (5th Cir. 2014); In re Nuvaring Products Liability Litigation, 2009 WL 4825170, at *2 & n.3 (E.D. Mo. Dec. 11, 2009) (refusing to rule on over 200 motions to dismiss; the “goal” of the MDL is “expeditious and efficient discovery”). Where plaintiffs are not being required − in the name of “efficiency” or of addressing “common issues” – either to plead or to provide discovery that would ordinarily vet their claims, if brought individually, Lone Pine orders are an appropriate vehicle to restore some form of equilibrium to aggregated tort litigation.2525 Acuna I, 200 F.3d at 340 (in a pre-TwIqbal case, over 1500 plaintiffs’ complaints provided no “notice” about “how many instances of which diseases were being claimed as injuries or which facilities were alleged to have caused those injuries”). They require plaintiffs to produce the evidence without which their claims could not proceed under the rules, but for the lassitude with which individualized discovery is often conducted in such situations.  Defendants should not have to do plaintiffs’ work for them, such as gathering the essential records that make exposure and injury “plausible” under TwIqbal.2626 Able Supply Co. v. Moye, 898 S.W.2d 766, 770 (Tex. 1995 (medical authorizations are “not a substitute for discovery on the issue of causation”). Far from denying safeguards available under the rules, Lone Pine orders provide defendants with procedural avenues to replace the individualized motions that many judges presiding over MDLs and mass torts are not inclined to entertain.

III. Timing of Lone Pine Orders

For defendants facing multiple plaintiffs asserting questionable claims timing is the single most important element in successfully obtaining a Lone Pine order. During early stages of litigation, courts tend to refuse full-blown Lone Pine orders including expert submissions. Requests for Lone Pine orders have encountered judicial resistance where issued before any discovery has taken place.2727 E.g., Simeone, 872 N.E.2d at 351 (reversing Lone Pine order entered “when there had yet to be any meaningful discovery”); Adkisson, 2016 WL 4079531, at *4; Nolan v. Exxon Mobil Corp., 2016 WL 1213231, at *11 (M.D. La. March 23, 2016); Trujillo I, 2016 WL 3552029, at *2; Russell, 305 F.R.D. at 84; Manning v. Arch Wood Protection, Inc., 40 F. Supp.3d 861, 864 (E.D. Ky. 2014); Smith v. Atrium Medical Corp., 2014 WL 5364823, at *3 (E.D. La. Oct. 21, 2014); Roth v. Cabot Oil & Gas Corp., 287 F.R.D. 293, 299-300 (M.D. Pa. 2012) (denying Lone Pine order “at an early point in this lawsuit”); Morgan v. Ford Motor Co., 2007 WL 1456154, at *9 (D.N.J. May 17, 2007) (requiring only “a simple statement” about “nature and extent of injuries suffered” prior to any discovery). In Adinolfe v. United Technologies Corp.,2828768 F.3d 1161, 1168 (11th Cir. 2014). the court criticized entry of a Lone Pine order requiring sworn expert evidence before TwIqbal motions to dismiss had been decided. “[T]here is a time and place for everything,” and “we do not think that it is legally appropriate (or for that matter wise) . . . to issue a Lone Pine order requiring factual support for the plaintiffs’ claims” before first determining “that those claims survive a motion to dismiss.”2929 Id. at 1167-1168. The most significant impediment to obtaining a Lone Pine order is judicially perceived prematurity.3030 Armendariz, 2018 WL 377199, at *3 (“a Lone Pine order . . .” should only occur where existing procedural devices explicitly at the disposal of the parties by statute and federal rule have been exhausted”); Hostetler v. Johnson Controls, Inc., 2017 WL 359852, at *5 (N.D. Ind. Jan. 25, 2017) (“Lone Pine orders should issue only ‘after the defendant has made a clear showing of significant evidence calling into question the plaintiffs’ ability to bring forward necessary medical causation and other scientific information’”) (quoting McManaway, 265 F.R.D. at 388).  Before the pleadings have been pierced, it is advisable to seek “Lone Bush” orders3131 In this article “Lone Bush” is used to describe a Lone Pine order not requiring production of expert reports. that “demand that plaintiffs come forward with some evidence supporting certain basic elements”3232 Adinolfe, 768 F.3d at 1168. rather than a full-blown Lone Pine order with expert testimony provisions as in Adinolfe.3333 Given that Lone Pine orders are more common in later stages of litigation, defendants cannot be faulted for not seeking limited relief at the preliminary stage.  Modern Holdings, 2015 WL 6482374, at *2.

Lone Pine orders requiring expert evidence have been frequently found appropriate at later stages of litigation, such as: (1) after plaintiffs’ failure to provide expert or fact discovery;3434 Avila, 633 F.3d at 834 (after five years of litigation and plaintiff failure to answer questionnaires adequately); Able Supply, 898 S.W.2d at 771 (granting mandamus compelling production of Lone Pine-type discovery); Simeone, 872 N.E.2d at 352 (observing that “most Lone Pine” orders are entered “after one party was refusing to comply with discovery requests”); Bell v. Exxonmobil Corp., 2005 WL 497295, at *3 (Tex. App. March 3, 2005)(detailing long history of non-compliance); Atwood, 605 N.E.2d at 1035-1036; Avandia, 2010 WL 4720335, at *1 (after “unsupported” plaintiff fact sheets); Miller, 2014 WL 12589121, at *1-2 (after plaintiffs’ non-substantive discovery responses); Wilcox v. Homestake Mining Co., 2008 WL 4697013, at *1 (D.N.M. Oct. 23, 2008), aff’d on other grounds, 619 F.3d 1165 (10th Cir. 2010); In re Silica Products Liability Litigation, 398 F. Supp.2d 563, 576-578 (S.D. Tex. 2005); 1994 Exxon Chemical Plant Fire, 2005 WL 6252312, at *2 (“after the many years since filing [suit], one would expect that the remaining plaintiffs would have some concrete, factual basis to support their claims”). (2) after completion of fact discovery;3535 In re Zimmer Nexgen Knee Implant Products Liability Litigation, 2016 WL 3281032, at *1 (N.D. Ill. June 10, 2016); Deepwater Horizon, 2016 WL 614690, at *5 (following plaintiffs’ “vague and generalized statements” in opposition to summary judgment); In re Orthopedic Bone Screw Products Liability Litigation, 1997 WL 303239, at *1 (E.D. Pa. Feb. 13, 1997). (3) when test cases are selected;3636 Bell, 2005 WL 497295, at *3 (Lone Pine order affirmed as to 50 test plaintiffs); Eggar v. Burlington Northern Railway Co., 1991 WL 315487, at *5 (D. Mont. Dec. 18, 1991), aff’d on other grounds, 29 F.3d 499 (9th Cir. 1994). (4) after dismissal of a high percentage of test cases;3737 Fosamax, 2012 WL 5877418, at *3 (“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”). (5) at the class certification stage, to determine if certification is appropriate;3838 Gbarabe v. Chevron Corp., 2017 WL 956628, at *6 (N.D. Cal. March 13, 2017) (Lone Pine-type causation evidence to accompany class certification request); Trujillo I, 2016 WL 3552029, at *3 (“appropriate that before proceeding to class certification, each named Plaintiff be required to make a prima facie showing” of a valid claim). (6) after class certification, to evaluate individual class members’ claims;3939 In re Nexium Antitrust Litigation, 777 F.3d 9, 21 (1st Cir. 2015); Madison v. Chalmette Refining, L.L.C., 637 F.3d 551, 556 (5th Cir. 2011); Abuan v. General Electric Co., 3 F.3d 329, 331 (9th Cir. 1993). (7) following exclusion of expert injury testimony, to cull plaintiffs with no other injury;4040 Rezulin, 441 F. Supp. 2d at 570 (enforcing Lone Pine order); In re Rezulin Products Liability Litigation, 2005 WL 1105067, at *1-2 (S.D.N.Y. May 9, 2005) (Lone Pine order). (8) shortly before trial,4141 Cottle, 3 Cal. Rptr.2d at 889; In re Bextra & Celebrex Marketing Sales Practices & Products Liability Litigation, MDL No. 1699, slip op. at 2 (N.D. Cal. Aug. 8, 2008). or (9) simply after excessive passage of time.4242 “The passage of time has resulted in the entry of Lone Pine orders.”  David B. Weinstein and Christopher Torres, Managing the Complex:  A Brief Survey of Lone PineOrders, 34 Westlaw Env’l J. 1, 5 (2013).  See In re Asbestos Products Liability Litigation (No. VI), MDL No. 875, Admin. Order #12, slip op., at sec. 6 (E.D. Pa. Sept. 3, 2009) (Lone Pine order applicable to all asbestos cases pending for at least two, and as many 18 years).  See In re Asbestos Products Liability Litigation (No. VI), 718 F.3d 236, 243-245 (3d Cir. 2013) (affirming this Lone Pine order; requiring “complete exposure history” and “medical diagnoses or opinions based on objective and subjective data”).  Accord Modern Holdings, 2015 WL 6482374, at *3 (Lone Pine order appropriate after two years of litigation); Love Canal, 547 N.Y.S.2d at 177 (entering order after “nearly 10 years” of litigation).

Unfortunately, some courts only resort to Lone Pine orders after settlement, when the threat of being required to demonstrate a prima facie case becomes a cudgel with which to obtain agreement to the settlement terms.  For example, in Vioxx, one of the largest mass torts, several years of litigation elapsed without the great bulk of plaintiffs ever being required to demonstrate that they had a case, until seven months after a settlement, a Lone Pine order was entered.4343 The Vioxx settlement was announced on November 9, 2007.  See,e.g., Alex Berenson, “Merck Agrees to Settle Vioxx Suits for $4.85 Billion,” N.Y. Times (Nov. 9, 2007).  Some eight months later, a strong Lone Pine order was entered.  Vioxx, 557 F. Supp.2d 741.  See also in re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2015 WL 5307473, at *1 (S.D. Ill. Sept. 10, 2015) (describing Lone Pine order entered shortly after settlement). While settlement is relevant to certain mass tort procedures, it should not be a prerequisite for a Lone Pine order.4444 See Fosamax, 2012 WL 5877418, at *3 (“the rationale set forth in Lone Pine and its progeny does not militate against entering the order in the absence of a settlement plan”; absent a settlement “Lone Pine will ensure that the home districts receive only viable cases”).

IV. Other Factors Influencing Availability of Lone Pine Orders

Defendants are well-advised to remember that “Lone Pine orders may not be appropriate in every case and, even when appropriate, they may not be suitable at every stage of the litigation.”4545 Vioxx, 557 F. Supp.2d at 744, aff’d, 388 Fed. Appx. 391 (5th Cir. 2010). Courts have listed other factors that influence whether, and when, Lone Pine orders are appropriate: (1) posture of the litigation, (2) peculiar case management requirements, (3) relevant external agency decisions affecting the merits,4646 An agency determination that “sound[s] the ‘all clear,’ or otherwise show[s] no exposure or possibility of injury. . .support[s] entrance of a Lone Pine order.”  Hostetler, 2017 WL 359852, at *6.  See Trujillo I, 2016 WL 3552029, at *3 (government study “that the level of toxic vapors . . . do not pose a danger”); McManaway, 265 F.R.D. at 388 (a government report that undercut the plaintiffs’ claims supported entry of a Lone Pine order); Lone Pine, 1986 WL 637507, at *2 (adverse EPA decision). (4) availability of alternative procedures, and (5) plaintiffs’ claimed injury and its cause.4747 Armendariz, 2018 WL 377199, at *2; Adkisson, 2016 WL 4079531, at *3; Nolan, 2016 WL 1213231, at *11; Trujillo I, 2016 WL 3552029, at *2; Russell, 305 F.R.D. at 83; Smith, 2014 WL 5364823, at *1; Fosamax, 2012 WL 5877418, at *2; Manning, 40 F. Supp.3d at 863; Abner I, 2014 WL 5817542, at *2; Digitek, 264 F.R.D. at 256.

For many types of information within plaintiffs’ exclusive control, courts find no need to wait for the litigation to mature. These include “plaintiff-by-plaintiff identification of illness, substance causing the illness and means of exposure.”4848 Acuna II, 1998 WL 35283824, at *7.  See Abner v. Hercules, Inc., 2017 WL 4236584, at *9 (S.D. Miss. Sept. 25, 2017) (“the Lone Pine order does not require Plaintiffs to produce anything they will not ultimately be required to produce in support of their claims”) (“Abner II”); McMunn, 896 F. Supp.2d at 350 (early Lone Pine order requiring plaintiffs to specify what they were exposed do, how, how much, and from where, along with scientific support for injury at that level of exposure); In re Baycol Products Liability Litigation, 2004 WL 626866, at *1 (D. Minn. March 18, 2004) (“plaintiffs must immediately provide medical records supporting drug exposure and injuries being claimed”). It is not “unreasonable” to assume “that before filing . . ., Plaintiffs should have had at least some information regarding the circumstances under which they could have been exposed to harmful substances, and the medical basis for believing that the named defendants were responsible for significantly increasing Plaintiffs’ risks of contracting various diseases.”4949 Trujillo I, 2016 WL 3552029, at *3. A less comprehensive “Lone Bush” -type order:

Require[]s plaintiffs to provide an affidavit by a specific date that states the following:  (1) the identity and amount of each chemical to which the plaintiff was exposed; (2) the precise disease that or illness from which the plaintiff suffers; and (3) the evidence supporting the theory that exposure to the defendant’s chemicals caused the injury in question.”5050 McManaway, 265 F.R.D. at 385 (quoting James P. Muehlberger and Boyd S. Hoekel, An Overview of Lone PineOrders in Toxic Tort Litigation, 71 Def. Couns. J. 366, 366-367 (Oct. 2004)).

Another example of a pre-discovery “Lone Bush”-type order required:

(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.5151 Modern Holdings, 2015 WL 6482374, at *4; see McClurg v. Mallinckrodt, Inc., 2017 WL 2929444, at *3-4, 5 (E.D. Mo. July 7, 2017) (describing “quasi-Lone Pine” order requiring a “preliminary expert report”).

Discovery from the defendant(s) is unnecessary on issues of the injuries that each plaintiff suffered, or identification of the product and product dose to which each plaintiff claims exposure – does it match what the plaintiffs’ master complaint is alleging?5252 See Avandia, 2010 WL 4720335, at *1-2 (entering Lone Pine order after many plaintiffs submitted fact sheets without supporting documentation; requiring a physician certified statement of product use and existent of relevant injury and supporting documentation); Baker v. Chevron USA, Inc., 2007 WL 315346, at *1 (S.D. Ohio Jan. 30, 2007) (Lone Pine order requiring information “for each Plaintiff the specific illness allegedly sustained, the date the illness was diagnosed, the name and address of the [diagnosing] medical provider . . ., the toxic chemical which allegedly caused the illness, the alleged manner of exposure, and the date, duration, and dose of the exposure”).  Other Lone Pine orders entered in this circumstance include:  Lone Pine itself, 1986 WL 637507, at *1; see also Schneider National Carriers, Inc. v. Bates, 147 S.W.3d 264, 268 (Tex. 2004); Schelske, 933 P.2d at 803; Asarco LLC v. NL Industries, Inc., 2013 WL 943614, at *3 (E.D. Mo. March 11, 2013) (7-part Lone Pine order entered as alternative to total stay of litigation); Arias v. Dyncorp, 2008 WL 9887418, at *1 (D.D.C. Oct. 21, 2008); Burns v. Universal Crop Protection Alliance, 2007 WL 2811533, at *3 (E.D. Ark. Sept. 25, 2007). This type of discovery requirement “impose[s] a minimal burden on plaintiffs, as it merely asks them to produce information they should already have.”5353 Fosamax, 2012 WL 5877418, at *2, 4; accord Avandia, 2010 WL 4720335, at *1. Thus, in Fosamax,5454 Fosamax, 2013 WL 4494427, at *1. an early Lone Pine order required 439 plaintiffs to provide expert support for their having either of the two injuries central to that litigation, and “[i]n the end, approximately 430 of those plaintiffs’ cases were dismissed.”5555 Id.

Lone Pine orders are not often entered in litigation involving only a few plaintiffs. “A Lone Pine motion seems to have the greatest chance for success when the case involves a mass tort.”5656 Weinstein, supra note 42, at 3. Most courts have denied such relief where the number of plaintiffs is comparatively small. In Antero Resources, for example, the court rejected the need for such an order in a “case involv[ing] only four family members, four defendants, and one parcel of land.”5757 347 P.3d at 158; accord Marquez, 2017 WL 3390577, at *3 (denying Lone Pine order in single-plaintiff litigation); Manning, 40 F. Supp.3d at 865 (denying Lone Pine order in single-plaintiff litigation); Roth, 287 F.R.D. 293, 299-300 (same; single property); Smith, 2014 WL 5364823, at *2 (same; single plaintiff); Jackson v. Syngenta Crop Protection, LLC, 2013 WL 4039403, at *1 (M.D. La. Aug. 7, 2013) (same; single family); Hagy, 2012 WL 713778, at *4 (same; single property); Ramirez v. E.I. DuPont De Nemours & Co., 2010 WL 144866, at *3 (M.D. Fla. Jan. 8, 2010) (same; single plaintiff). However, where a single plaintiff sues a large number of defendants, a Lone Pine order can be justified.5858 Schelske, 933 P.2d at 803-804. There is no hard and fast cutoff, but Lone Pine orders have been “utilized by trial courts in cases where there are as few as fifteen plaintiffs.”5959 Ashford, 2015 WL 6118387, at *2 (citing Baker, 2013 WL 3282880, at *1, 4). Indeed, one court declared it to be “equally important to prevent needless expense and time consuming discovery in cases involving even a single plaintiff, where the plaintiff has not offered any substantive information as to the basis for his or her claim.”6060 Miller, 2014 WL 12589121, at *1.

Requests for Lone Pine orders that contradict prior court rulings are also unlikely to succeed. Thus, in Fosamax, a Lone Pine request failed as to short-term use, where summary judgment on that issue had already been denied, and on interrupted use, where the defendant had previously taken a contradictory position.61612013 WL 4494427, at *1-2.

V. Enforcement of Lone Pine Orders

Once entered, enforcement of Lone Pine orders is essential, “[o]therwise, a Lone Pine order has no teeth.”6262 Deepwater Horizon, 2016 WL 614690, at *14 (quoting Vioxx, 2012 WL 1398622, at *4).

[T]hose Plaintiffs who have submitted “blank” or “incomplete” questionnaires have failed to adhere to the content requirements of [the Lone Pine order]. Their failure to provide this essential information despite the Court’s order that they do so also warrants dismissal with prejudice.6363 Id. See In re Avandia Marketing, Sales Practices & Products Liability Litigation, 319 F.R.D. 480, 485-486 (E.D. Pa. 2017) (dismissing claim for noncompliance with Lone Pine order), aff’d, 687 F. Appx. 210 (3d Cir. 2017).

Thus, even successful Lone Pine requests must be well-phrased to demand the specific information being requested. Loosely phrased orders run the risk of generating responses that fail to provide useful, case- and claim-specific information. Since Lone Pine orders are not motions to dismiss or for summary judgment, courts may find even vague responses sufficient to satisfy equally imprecise demands.6464 See Trujillo II, 2017 WL 3026107, at *5 (“declin[ing] Defendants’ invitation to scrutinize Plaintiffs’ Lone Pine experts as it would experts offered at summary judgment”); Purdy v. Merck & Co., 2017 WL 395747, at *2 (S.D.N.Y. Jan. 25, 2017) (“[w]hile the revised report is not a picture of clarity, the Court finds that it meets the essential requirements of the Lone Pine order”); Modern Holdings, LLC v. Corning Inc., 2016 WL 4430838, at *5 (E.D. Ky. Aug. 17, 2016) (“[w]hile the provided information could, at times, be more specific, at this stage of the litigation Plaintiffs are required only to present some evidence in support of their claims”).

VI. Conclusion

While Lone Pine orders are a well-established mass tort practice, their use is currently hampered by lack of explicit recognition in the civil rules, the JPML’s rules or the Manual for Complex Litigation.6565 The current fourth edition of the Manual for Complex Litigation does not even mention Lone Pine orders. Amending the JPML rules to list Lone Pine procedures as appropriate discovery at the outset of mass tort (and probably other kinds of) litigation is a more achievable goal. To achieve the goals of the MDL statute, the corresponding rules should require case management orders that start separating the wheat from the chaff from the outset of mass tort litigation. Ultimately, however, the best solution would be the enactment of a federal rule specifying when Lone Pine orders may issue and what they may and may not contain.

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